Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions: (a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority. (c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C. (d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c). (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law. (f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion. (g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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). (j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date. (k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date. (l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect. (m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request. (n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 3 contracts
Sources: Agency Agreement (Meridian Bancorp, Inc.), Agency Agreement (Meridian Interstate Bancorp Inc), Agency Agreement (Meridian Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of (i) the Agent hereunder, hereunder with respect to any Shares that the Company has instructed the Agent to sell as sales agent on behalf of the Company and (ii) the Agent hereunder and under any Terms Agreement with respect to any Shares that the Shares Agent has agreed to be delivered at purchase or has the Closing Date, option to purchase as principal pursuant to any Terms Agreement are subject, subject to (A) the extent not waived in writing by accuracy of the Agent, to the condition that all representations and warranties of the Primary Parties Company, the General Partner and the Operating Partnership contained herein are(1) as of each Representation Date, at (2) as of each Recommencement Date, (3) as of each Applicable Time, (4) as of each Settlement Date and (5) as of the commencement date such instructions are given to the Agent or the date of such Terms Agreement, as the Offerings and at and as of case may be, (B) the Closing Date, true and correct performance in all material respectsrespects by the Company, the condition that General Partner and the Primary Parties shall have performed all Operating Partnership of its their covenants and other obligations hereunder to be performed on or before and, if applicable, under such datesTerms Agreement, as the case may be, and to (C) the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except Subsequent to the extent waived or otherwise approved by the FRB execution and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date delivery of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority.:
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they There shall not have carefully examined the Prospectus andoccurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible downgrading, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain rating accorded any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingsecurities of the Company or any of the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) since the date the Prospectus became authorized for final useThere shall not have occurred any change, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forthany development involving a prospective change, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties business or business operations of the Primary Parties Company and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates Subsidiaries, taken as of which information is given in the Registration Statementa whole, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for from that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the ProspectusTime of Sale Prospectus that, 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 Adverse Effect that is in judgment of the Agent’s reasonable judgment sufficiently , is material and adverse as and that makes it, in the judgment of the Agent, impracticable to make it impracticable or inadvisable to proceed with the Offerings or the delivery of market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(hb) Prior to The Agent shall have received on each date and at the Closing Date: (iwithin each time period specified in Section 6(m) in the reasonable opinion hereof a certificate, dated such applicable date and signed by an executive officer of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business Company on its own behalf and as General Partner of the Primary PartiesOperating Partnership, considered as one enterprise, from that as of to the latest dates as of which such condition is effect set forth in Section 5(a) above and to the Prospectuseffect that the representations and warranties of the Company, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into the General Partner and the Operating Partnership contained in this Agreement that are qualified by any Primary Party since the latest dates materiality are true and correct as of which such applicable date and those not so qualified are true and correct in all material respects as of such applicable date and that 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 FRBCompany, the Division or General Partner and the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not Operating Partnership have complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations all of the FRB agreements and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards satisfied all of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to conditions on their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 respective parts to be in agreement therewith (subject performed or satisfied hereunder on or before such applicable date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to rounding)proceedings threatened.
(jc) To the extent a sale or other disposition or transfer of shares of common stock or other securities The Agent shall have received on each date and within each time period specified in Section 6(n) hereof an opinion and 10b-5 letter of the Holding Company is not otherwise prohibited by applicable law or regulation outside counsel for the duration of the time period provided thereinCompany, each of the persons set forth on Exhibit E hereto shall deliver dated such applicable date, with respect to the Agent a “lock-up” agreement, each matters identified in substantially the form of Exhibit E A hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(kd) At the Closing Date, the The Agent shall receive a letter dated have received on each date and within each time period specified in Section 6(n) hereof an opinion of the Closing Date, addressed to outside counsel for the Agent, confirming the statements made by Wolf & Companydated such applicable date, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of covering such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates matters as the Agent may reasonably request.
(ne) Subsequent The Agent shall have received on each date and within each time period specified in Section 6(n) hereof an opinion of the Maryland counsel for the Company, dated such applicable date, with respect to the matters identified in Exhibit B hereto.
(f) The Agent shall have received on each date and within each time period specified in Section 6(n) hereof an opinion of the special tax counsel for the Company, dated such applicable date, with respect to the matters identified in Exhibit C hereto.
(g) The Agent shall have received on each date and within each time period specified in Section 6(n) hereof a certificate of the General Counsel of the Company, dated such applicable date, with respect to the matters identified in Exhibit D hereto.
(h) The Agent shall have received, on each date and within each time period specified in Section 6(o) hereof, a letter dated such applicable date, in form and substance reasonably satisfactory to the Agent, from Deloitte & Touche LLP, an Independent Registered Public Accounting Firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its Subsidiaries and certain financial information with respect to the Company and its Subsidiaries contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on any Settlement Date pursuant to any Terms Agreement shall use a “cut-off date” not earlier than two business days prior to the date hereof, there shall not have occurred any of the following; such Terms Agreement.
(i) Upon commencement of the offering of Shares under this Agreement, the Company shall furnish or cause to be furnished promptly to the Agent a suspension certificate of an executive officer of the Company, dated such date, in a form reasonably satisfactory to the Agent stating the minimum sales price per share, if any, for the sale of such Shares pursuant to this Agreement and the maximum aggregate offering price that may be issued and sold pursuant to this Agreement, as authorized from time to time by the Board or limitation an authorized committee thereof, and the number of Shares that have been approved for listing subject to official notice of issuance, on NASDAQ. For the avoidance of doubt, the obligations of the Company under this Section 5(i) shall be suspended during any Suspension Period.
(j) The Agent shall have received, on each date and within each time period specified in trading Section 6(o) hereof, a letter dated such applicable date, in securities generally on form and substance reasonably satisfactory to the New York Stock Exchange (Agent, from each accountant who has certified financial statements of any businesses or properties acquired or proposed to be acquired by the “NYSE”) Company or a Subsidiary included or incorporated by reference in the overRegistration Statement, the Time of Sale Prospectus or the Prospectus, if any, for purposes of complying with Rule 3-the05 or Rule 3-counter market14 of Regulation S-X of the Securities Act, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to such financial statements and certain financial information with respect to such business or quotations halted generally on properties contained in the Nasdaq Stock MarketRegistration Statement, the Time of Sale Prospectus and the Prospectus; provided, that the condition set forth in this Section 5(j) shall not apply if the financial statements of such businesses or minimum properties are no longer included or maximum prices for trading incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(k) The Shares shall have been fixedapproved for listing on NASDAQ, or maximum ranges for prices for securities subject only to official notice of issuance.
(l) The Company shall have been paid the required by either of such exchanges or Commission filing fees relating to the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engShares as specified in Section 6(k).
Appears in 3 contracts
Sources: Sales Agreement (CyrusOne Inc.), Sales Agreement (CyrusOne Inc.), Sales Agreement (CyrusOne Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board, the Connecticut Banking Department or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the CommissionCommission and the Conversion Application, the Holding Company Application and the Conversion Connecticut Application shall have been approved by the FRB Federal Reserve Board and the Massachusetts Application shall have been approved by the Division Connecticut Banking Department not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRBFederal Reserve Board, the Division Connecticut Banking Department or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.PC, special counsel for the Primary Parties, which shall also state that K▇▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, K▇▇▇▇▇▇▇▇, Taff ▇ T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of reasonably acceptable to the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c)Agent.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date respective dates as of which information is given in the Prospectus became authorized for final useRegistration Statement, the General Disclosure Package and the Prospectus, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties properties, business or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessbusiness and the conditions set forth in this Section 8 have been satisfied; (iviii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Datethis Section 8; (viv) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (viivi) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBFederal Reserve Board, the Division Connecticut Banking Department or any other Federal federal or state authority; and (viiivii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve Board, the Division Connecticut Banking Department or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as be reasonably be expected to have a wholeMaterial Adverse Effect; (iviii) 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; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the financial condition, results purpose of operations enjoining or business prohibiting the consummation of the Primary PartiesConversion or Offering and no statute, taken as a wholerule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31September 30, 2011 2015, June 30, 2015 and 2012June 30, 2014 and the three months ended September 30, 2015 and the years ended June 30, 2015 and 2014, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator SEC and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the latest available consolidated unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-TierTier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated recent developments financial statements information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierTier Holding Company, other than normal deposit fluctuations for the BankMid-Tier Holding Company, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Holding Company and (C) during the period from the date of such letter the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with amounts shown the corresponding period in the latest balance sheet included preceding fiscal year, in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearTier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierTier Holding Company, which are subject to the internal controls of the Mid-TierTier Holding Company, the accounting system and other data prepared by the Mid-TierTier Holding Company, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (hi) to be a date specified in the letter required by this subsection (hi) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB Federal Reserve Board, the Connecticut Banking Department and any other applicable regulator approving the Conversion Application, the Holding Company ApplicationApplication and the Connecticut Application and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation Commission that the Commission has declared the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue Federal Reserve Board evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence MHC and good standing of the Mid-TierTier Holding Company; (viiv) a certificate from the Division Connecticut Banking Department evidencing the good standing of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ixvii) a certificate from the Federal Reserve Bank-Boston evidencing the Bank’s membership therein; (viii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiix) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authorityauthority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or de
Appears in 3 contracts
Sources: Agency Agreement (PSB Holdings, Inc.), Agency Agreement (PB Bancorp, Inc.), Agency Agreement (PB Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division Federal Reserve Board or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, P.C. special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date respective dates as of which information is given in the Prospectus became authorized for final useRegistration Statement, the General Disclosure Package and the Prospectus, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties properties, business or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessbusiness and the conditions set forth in this Section 8 have been satisfied; (iviii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Datethis Section 8; (viv) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (viivi) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division Federal Reserve Board or any other Federal federal or state authority; and (viiivii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as be reasonably be expected to have a wholeMaterial Adverse Effect; (iviii) 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; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the financial condition, results purpose of operations enjoining or business prohibiting the consummation of the Primary PartiesConversion or Offering and no statute, taken as a wholerule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & CompanyBDO USA, P.C.LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & CompanyBDO USA, P.C. LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2011 2014, June 30, 2014 and 2012June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator SEC and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: that (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated recent developments financial statements information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierTier Holding Company, other than normal deposit fluctuations for the BankMid-Tier Holding Company, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Holding Company and (B) during the period from the date of such letter the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with amounts shown the corresponding period in the latest balance sheet included preceding fiscal year, in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearTier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierTier Holding Company, which are subject to the internal controls of the Mid-TierTier Holding Company, the accounting system and other data prepared by the Mid-TierTier Holding Company, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by Wolf & CompanyBDO USA, P.C. LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (hi) to be a date specified in the letter required by this subsection (hi) which for purposes of such letter shall not be more than three business days prior to the Closing DateDate and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation Commission that the Commission has declared the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue Federal Reserve Board evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence MHC and good standing of the Mid-TierTier Holding Company; (viiv) a certificate from the Division New Jersey Banking Department evidencing the good standing of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston New York evidencing the Bank’s membership therein; (ixvii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiviii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authorityauthority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, 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 Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 3 contracts
Sources: Agency Agreement (MSB Financial Corp.), Agency Agreement (MSB Financial Corp), Agency Agreement (MSB Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Reorganization are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Greenville Federal Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct correct, the condition that the Greenville Federal Parties shall have performed, in all material respects, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Greenville Federal Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB OTS and the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the MHC Notice and Holding Company Application and the Conversion Application shall have been approved by the FRB OTS and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Greenville Federal Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been therefor initiated or, to the knowledge of the Primary Greenville Federal Parties, threatened by the Commission or any state authority; (vii) no order suspending the ConversionOTS, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the body. The Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Greenville Federal Financial Corporation.
(c) At the Primary Parties.Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of VSSP, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect that:
(i) Concurrently Greenville Federal Financial Corporation is a 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.
(ii) The Bank is a validly existing federally chartered mutual savings and loan association, and upon consummation of the Reorganization, the Bank will become a validly existing federally chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the 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 federal law and the rules and regulations of the OTS (or valid waivers granted it by the OTS from such rules and regulations); all of the capital stock of the Bank to be outstanding upon completion of the Reorganization will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by Greenville Federal Financial Corporation, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member in good standing of the Federal Home Loan Bank of Cincinnati. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's Actual Knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(iv) Greenville Federal MHC has been duly organized and is validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon consummation of the Reorganization and the issuance of the Shares immediately upon completion of the Reorganization, under the terms of the approval order of the OTS, in an amount as described in the Prospectus, (a) the authorized, issued and outstanding capital stock of Greenville Federal Financial Corporation 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 Greenville Federal Financial Corporation); (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by Greenville Federal Financial Corporation pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter or bylaws of Greenville Federal Financial Corporation, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from Greenville Federal Financial Corporation to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Greenville Federal Parties have full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Greenville Federal Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Greenville Federal Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally or the rights of creditors of savings associations or financial institutions, the accounts of which are insured by the FDIC, or their holding companies, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) Pursuant to the MHC Regulations, the Plan has been duly approved by the required vote of the Bank's members, based upon the certificate of the inspector of election, and duly adopted by the required vote of the directors of Greenville Federal Financial Corporation and the Bank.
(viii) The Plan complies in all material respects with the MHC Regulations; the MHC Notice and the Holding Company Application have been approved by the OTS, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, Commission or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the Agent shall receive a letter from Wolf & Companyoffer, P.C., dated as sale and issuance of the date hereof Shares and addressed the consummation of the Reorganization, except as may be required under the securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the MHC Notice, the Prospectus or the Holding Company Application.
(ix) The Registration Statement has become effective under the 1933 Act, and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted by the Commission and to such counsel's Actual Knowledge, no such proceedings have been threatened by the Commission.
(x) The terms and provisions of the Shares conform in all material respects to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within description thereof contained in the applicable rules of the Public Company Accounting Oversight Board (United States) Registration Statement and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included the forms of certificates proposed to be used to evidence the Shares are in due and proper form in compliance with applicable laws.
(xi) At the Prospectustime the MHC Notice, comply including the Prospectus and Members' Proxy Statement contained therein, was approved by the OTS, the MHC Notice, including the Prospectus and Members' Proxy Statement contained therein, as amended or supplemented, complied as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBMHC Regulations (other than the financial statements, the Division notes to financial statements, financial tables or other financial and statistical data included therein and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus appraisal valuation and the performance of the procedures referred business plan, as to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jxii) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of At the time period provided therein, each that the Registration Statement became effective and as of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated Registration Statement, including the Closing DateProspectus (as amended or supplemented) (other than the financial statements, addressed notes to financial statements, financial tables or other financial and statistical data included therein and the Agentappraisal valuation and the business plan, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant as to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(bcounsel need express no opinion), (ii) stating in effect that the Appraisal prepared by such firm complies complied as to form in all material respects with the applicable requirements of Title 12 the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Code of Federal RegulationsShares, and or (iii) further stating that its opinion of which are required to be disclosed in the aggregate pro forma market value of the Holding Company including the BankRegistration Statement and Prospectus, as most recently updated, remains in effectother than those disclosed therein.
(mxiv) At or prior The information in the Prospectus under the captions "Summary -- The reorganization and the stock offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Plans Regarding Dividends," "Management," "Supervision and Regulation," "Taxation," "Our Reorganization and Stock Offering," "Restrictions on Acquisition of Greenville Federal Financial Corporation and Greenville Federal" and "Description of Capital Stock of Greenville Federal Financial Corporation," to the Closing Dateextent that such information constitutes matters of law, the Agent shall receive: (i) a copy summaries of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission legal matters, documents or proceedings, or legal conclusions, has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence been reviewed by such counsel and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation is accurate in trading in securities generally on the New York Stock Exchange (the “NYSE”) or all material respects. The descriptions in the over-the-counter market, Prospectus of statutes or quotations halted generally on regulations are accurate summaries and fairly present the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been information required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engto be shown.
Appears in 2 contracts
Sources: Agency Agreement (Greenville Federal Financial CORP), Agency Agreement (Greenville Federal Financial CORP)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB and OTS, the Massachusetts Application shall Charter Applications have been approved by the Division not later than 5:30 p.m. on the date FDIC and New Jersey Department of this AgreementBanking and Insurance, or with the Agent’s consent at a later time and dateas applicable, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the FRBFDIC, the Division New Jersey Department of Banking and Insurance, the Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special P.C. and/or local counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed acceptable to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as attached hereto described in the Prospectus and is duly qualified to transact business and is in good standing in Delaware 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 New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as Exhibit D. Such 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 New Jersey Department of Banking and Insurance; 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 and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. 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 New York. 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 the Plan, will be fully paid and nonassessable; (c) 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 Voting Depositors 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 all material respects 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 New Jersey Department of Banking and Insurance, 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 and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may rely upon certificates be required under the state securities or “blue sky” laws of officers various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and directors outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, 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 Depositors’ 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. 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 New Jersey Department of Banking and Insurance, in approving the Applications filed with such agencies, respectively.
(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” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani 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 delivered pursuant hereto 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 certificate 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 certificate 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, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York, New Jersey and Delaware. In rendering such opinion, such counsel shall reasonably request may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇ counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered pursuant to Section 8(c)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.
(e2) A blue sky memorandum from The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating in form and substance to the Offeringseffect that during the preparation of the Registration Statement and the Prospectus, including Agent’s participation thereinLuse, shall have been furnished prior Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the mailing Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the Holding Company with a copy thereof addressed statements contained therein and, although (without limiting the opinions provided pursuant to Agent or upon which Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state has not independently verified the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining accuracy, completeness or confirming exemptions, qualifications or the registration fairness of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given contained in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engState
Appears in 2 contracts
Sources: Agency Agreement (Oritani Financial Corp), Agency Agreement (Oritani Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Winchester Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Winchester Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Winchester Parties shall have conducted the Conversion Reorganization and the establishment and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB Massachusetts Regulations, the FRB Commitments Conversion and Massachusetts Banking Law Related Regulations and the Control Act Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorDivision, the FDIC or the FRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Division, the FDIC, the FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB and FRB, the Massachusetts Reorganization Application shall have been approved by the Division and the FDIC Applications shall have been approved or not been objected to, as applicable, by the FDIC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Winchester Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Winchester Parties’ knowledge, threatened by the CommissionSEC, the FRBDivision, the Division FDIC, the FRB or any other regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Foundation Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Information Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Winchester Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary Winchester Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ ▇▇▇▇▇▇ delivered pursuant to Section 8(c)subsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Mid-Tier Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares and the Foundation Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Winchester Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedWinchester Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the ProspectusPackage, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Winchester Parties independently, or of the Primary Winchester Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Winchester Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date Date, including the conditions set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Mid-Tier Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to Wolf & Company, P.C. and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Mid-Tier Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (viixii) no order suspending the ConversionReorganization, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the FRBSEC, the Division Division, the FDIC, the FRB or any other Federal state or state federal authority; and (viiixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain review of the final action of the Division approving the Massachusetts Reorganization Application, including the Plan included therein; or the FDIC approving or not objecting, as applicable, to the FDIC Applications including the FDIC Notice and the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application, the Division’s approval of the Massachusetts Reorganiztion Application or the FDIC’s approval of or non-objection to, as applicable, to each of the FDIC Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB, the Division Division, the FDIC or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Division or the FDIC.
(g) None of the Primary Winchester Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Winchester Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Winchester Party since the latest dates as of which the financial condition of the Primary Winchester Parties is set forth in the Prospectus, other than transactions referred to or contemplated thereintherein or in the ordinary course of business; (iii) none of the Primary Winchester Parties shall have received from the FRBDivision, the Division FDIC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Winchester Parties taken as a whole; (iv) none of the Primary Winchester Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Winchester Parties, threatened against the any of the Primary Winchester Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Winchester Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31June 30, 2011 2024 and 20122023, and for each of the years in the two-year period ended June 30, 2024, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)PCAOB) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors or Trustees, as applicable, of each of the Primary Winchester Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim consolidated financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in consolidated long-term or short-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans assets of the Bank; or (C) except as set forth in said letter, there was any decrease in the total consolidated assets, total investment securities, total loans, the allowance for loan credit losses, total deposits deposits, or total equity surplus of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest consolidated balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or and dividend income, net interest income or income, net interest income after provision for loan credit losses, non-interest other income or net income or increase in interest expense, operating expense or the provision for loan credit losses or non-interest expense of the Mid-TierBank, in each case for the number of full months period commencing immediately after the period covered by the latest audited consolidated balance sheet and net income (loss) statement included in the Prospectus and ended on the latest month end a specified date not more than three business days prior to the date of the Prospectus this Agreement as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engtha
Appears in 2 contracts
Sources: Agency Agreement (Winchester Bancorp, Inc./Md/), Agency Agreement (Winchester Bancorp, Inc./Md/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Melrose Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Melrose Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Melrose Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the Commissioner, the FRB and any other applicable regulatorthe FDIC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Commissioner or any other applicable regulatorthe FDIC.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Applications and Holding Company Application shall have been approved by the FRB Commissioner, the FDIC and the Massachusetts Application shall have been approved by the Division FRB, as applicable, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Melrose Parties’ knowledge, threatened by the Commission, the FRBCommissioner, the Division FDIC or any other Federal or state authoritythe FRB.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesHolding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Melrose Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Melrose Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Melrose Parties independently, or of the Primary Melrose Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Melrose Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Melrose Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Melrose Parties, threatened by the FRBCommissioner, the Division FDIC, the FRB or any other Federal or state authority; and (viii) to the best knowledge of the Primary Melrose Parties, no person has sought to obtain review of the final action of the FRB, Commissioner or the Division or any other applicable regulator approving the ConversionFDIC.
(gf) None of the Primary Melrose Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hg) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Melrose Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Melrose Parties shall have received from the FRBCommissioner, the Division FDIC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Melrose Parties taken as a whole; (iviii) none of the Primary Melrose Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Melrose Parties, threatened against the any of the Primary Melrose Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Melrose Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Melrose Parties.
(ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31, 2011 2013 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the Commissioner, the FDIC and the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Melrose Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommissioner, the Division and the FDIC and GAAP the FRB and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierBank, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(ki) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇▇▇▇▇ in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lj) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Melrose Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the Commissioner approving the Massachusetts Conversion Application and authorizing the use of the Prospectus; (ii) a copy of the letter from the FDIC not objecting to the FDIC Conversion Application; (iii) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iiiiv) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division Commissioner evidencing the good standing of the Bank; (viivi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ixviii) a certificate from the Maryland Department of Assessments and & Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; Company and (xiix) such other documents and certificates as the Agent may reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Melrose Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Melrose Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Melrose Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Melrose Bancorp, Inc.), Agency Agreement (Melrose Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary PyraMax Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary PyraMax Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary PyraMax Parties shall have conducted the Conversion Reorganization and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB MHC Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Control Act Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB Federal Reserve, the OCC, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB Federal Reserve, the OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on FDIC, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the PyraMax Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the PyraMax Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, OCC or the Division FDIC or any other Federal regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the PyraMax Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the PyraMax Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇ & LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇ LLP, P.C.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 and the 1934 Act and the related rules and regulations of the Commission thereunder, the Federal Reserve, the OCC and the FDIC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the PyraMax Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special counsel mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the Primary Partiesperiod commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in form addition to the audit referred to in its opinion included in the Prospectus and substance the performance of the procedures referred to in clause (ii) of this subsection (d), 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 PyraMax Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as attached hereto as Exhibit C.the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇receive a letter from ▇▇▇▇▇▇ LLPLLP dated the Closing Date, special counsel for addressed to the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to Section 8(c11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At or prior to Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselPyraMax Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary PyraMax Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBCommission, the Division OCC, the FDIC or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve, the Division FDIC or any other applicable regulator the OCC in approving the ConversionApplications or to enjoin the Reorganization.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the PyraMax Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the PyraMax Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary PyraMax Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesPyraMax Parties independently, considered or the PyraMax Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated thereinprior to the Closing Date, (i) a copy of the letter from the Federal Reserve approving the MHC Notice, including the establishment of the Foundation; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in letter from the Prospectus, other than transactions referred to or contemplated thereinFederal Reserve approving the Holding Company Application; (iii) a copy of the letter from the OCC approving the OCC Applications, (iv) a copy of the letter from the FDIC approving the FDIC Application, (v) a copy of the order from the Commission declaring the Registration Statement effective, if available; (vi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vii) a certificate from the FHLB-Chicago evidencing the Bank’s membership therein; (viii) a certified copy of each of the Company’s, the Bank’s and the MHC’s Charter and Bylaws, as applicable; and (ix) any other documents that Agent shall reasonably request.
(l) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary PyraMax Parties shall will have received from the FRBFederal Reserve, the Division OCC, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating any PyraMax Party and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated the Closing Date, addressed representation and warranty by such PyraMax Party to the Agent, confirming Agent as to the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Datetherein.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (1895 Bancorp of Wisconsin, Inc.), Agency Agreement (1895 Bancorp of Wisconsin, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Eagle Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Eagle Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Eagle Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Division, the FDIC, the FRB and the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application and Holding Company Application shall have been approved by the FRB Division, the FDIC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFRB, or with the Agent’s consent at a later time and dateas applicable, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Eagle Parties, threatened by the Commission SEC or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Eagle Parties’ knowledge, threatened by the CommissionDivision, the FDIC, the FRB, the Division SEC, or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A.
(d) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A a blue sky memorandum from ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state PC permits the Agent may to rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from each of BKD, LLP and M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from each of BKD, LLP and M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (e) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents 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 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.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselEagle Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary Eagle Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; SEC or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock 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, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionDivision, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orFDIC, to the knowledge of the Primary Parties, threatened by the FRB, the Division SEC, or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator the FDIC in approving the Plan or to enjoin the Conversion.
(gi) At the Closing Date, the Agent shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the Eagle Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Eagle Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Primary Eagle Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesEagle Parties independently, considered or the Eagle Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(l) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and a copy of the letters from the Division and the FDIC approving the Conversion Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusSEC declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the FRB approving the Holding Company Application, (iv) a certificate from the FHLB-Cincinnati evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market (“NASDAQ”), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the SEC or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing date, none of the Primary Eagle Parties shall will have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To FINRA shall have confirmed that it has not raised any objection with respect to the extent a sale or other disposition or transfer of shares of common stock or other securities fairness and reasonableness of the Holding Company is not otherwise prohibited by applicable law or regulation for underwriting terms and arrangements relating to the duration offering of the time period provided thereinShares.
(p) All such opinions, each of certificates, letters and documents will be in compliance with the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating the Company or the Bank and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated representation and warranty by the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including or the Bank, as most recently updatedthe case may be, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engstatements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Eagle Financial Bancorp, Inc.), Agency Agreement (Eagle Financial Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Conversion Application and the Conversion Holding Company Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOTS, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the FRB, the Division Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special P.C. and/or local counsel for acceptable to the Primary PartiesAgent, in form and substance as satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit C.D.
(d2) At The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the Closing Dateeffect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent shall have received at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel for Stifel, with respect to such matters as the Agent, in form and substance as attached hereto as Exhibit D. Such Agent may reasonably require; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of ▇▇▇▇ delivered ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 8(c10(b)(3)), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(e5) A blue sky memorandum Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the OfferingsOffering and the Exchange, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(fc) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) , such letter confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules meaning of the Public Company Accounting Oversight Board (United States) 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in its opinion the audited consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion Holding Company included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with generally accepted accounting principles, the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator 1933 Act and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Act Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of 1934 Act and the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng1934 Act Regulations;
Appears in 2 contracts
Sources: Agency Agreement (Atlantic Coast Federal Corp), Agency Agreement (Atlantic Coast Financial CORP)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all of the respective representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects (except for those representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects), the condition that each of the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Merger Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived in writing or otherwise approved by the FRB and any other applicable regulatorOCC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Merger Conversion imposed upon them by the FRB or any other applicable regulatorOCC to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by Prior to the CommissionClosing Date, the Holding Company Application and the Conversion Application Plan shall have been approved by the FRB Members of Elberton in accordance with the Plan, the Conversion Regulations, the applicable provisions of Elberton’s charter and bylaws and the Massachusetts Application Proxy Statement.
(c) The Applications shall have been approved by the Division not later than 5:30 p.m. on FDIC, the GDBF, the OCC and the FRB, as applicable, as of the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness approval of the Registration Statement Applications shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission FDIC, the GDBF, the OCC or the FRB, or any state authority, and no order or other action suspending the authorization of the Prospectus Offering Circular or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, threatened by the CommissionFDIC, the GDBF, the SEC, the FRB, the Division or OCC, any other Federal state authority or state authorityGovernmental Authority.
(cd) At the Closing Date, the The Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ & Bird in form and substance reasonably satisfactory to the Agent and counsel for the Agent, in the form attached hereto as Exhibit B. The opinion may be limited to matters governed by the laws of the United States and the States of Georgia and New York. 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 and Georgia, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (b) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Oconee Parties and public officials; provided that copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by counsel to the Oconee Parties. The opinion of such counsel for the Oconee 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 Oconee 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.
(e) The Agent shall have received the letter of ▇▇▇▇▇▇ & Bird, in form and substance reasonably satisfactory to the Agent and Agent’s counsel, to the effect that during the preparation of the Offering Statement and the Offering Circular, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for ▇ participated in conferences with certain officers of and other representatives of the Primary Parties, in form counsel to the Agent, representatives of the independent public accountants for the Oconee Parties and substance as attached hereto as Exhibit C.
(d) At the Closing Date, representatives of the Agent shall have received at which the favorable opinion, dated as contents of the Closing Date Offering Statement and addressed the Offering Circular and related matters were discussed and has considered the matters required to be stated therein and the Agent and for its benefitstatements contained therein and, although (without limiting the opinions provided pursuant to Section 10(d) of Silverthis Agreement), ▇▇▇▇▇▇▇▇▇ & Bird has not independently verified the accuracy, Taff & ▇completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇& Bird that caused ▇▇▇▇▇▇ & ▇▇▇▇ to believe that the Offering Statement at the time it was declared qualified by the SEC and as of the date of such letter contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included in or omitted from, or statistical or appraisal methodology employed, in the Offering Statement or Offering Circular).
(f) A blue sky memorandum from ▇▇▇, P.C. ▇▇▇ & Bird relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished to the Company prior to the mailing of the Prospectus to the Holding Company Offering Circular with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. Bird shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities lawlaws.
(fg) The Agent shall have received the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, counsel for Elberton, in form and substance satisfactory to the Agent and counsel for the Agent, in the form of Exhibit C. The opinion may be limited to matters governed by the laws of the United States and the State of Georgia. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the 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 Elberton and public officials; provided that copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by counsel to Elberton. The opinion of such counsel for Elberton 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 Elberton 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.
(h) The Agent shall have received the letter of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, in form and substance satisfactory to the Agent and the Agent’s counsel, to the effect that during the preparation of the Offering Statement and the Offering Circular, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Oconee Parties and the Agent, representatives of the independent public accountants for Elberton and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular related to Elberton were discussed and has considered the matters related to Elberton required to be stated therein and such statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(g)), ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ that caused ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ to believe that the Offering Statement at the time it was declared qualified by the SEC and as of the date of such letter, 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 thereinunder the headings: “Summary – Our Acquisition of Elberton Federal Savings &Loan Association,” “Summary – This Offering,” “Terms of the Offering’” and “Description of the Merger Conversion and Related Agreements” in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Offering Statement, or Offering Circular).
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus Offering Statement and Offering Circular and, in their opinion, at the time the Prospectus Offering Circular became authorized for final use, the Prospectus Offering Statement and Offering Circular did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final useQualification Date, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which Offering Statement and Offering Circular that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Oconee Parties and the conditions set forth in this Section 8 10 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the ProspectusOffering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterpriseBank, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Oconee Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Merger Conversion, the Offerings Offering or the use of the Prospectus Offering Circular has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBFDIC, the Division GDBF, the SEC, the OCC, or any other Federal Governmental Authority.
(j) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of Elberton in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Offering Statement and Offering Circular and, in their opinion, at the time the Offering Circular became authorized for final use, the Offering Statement and Offering Circular did not contain any untrue statement of a material fact or omit to state authoritya material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that such certification pursuant to this clause (i) shall not apply to information related to the Oconee Parties or which was provided by the Oconee Parties for inclusion in the Offering Circular or to statements or omissions in reliance upon and in conformity with written information furnished to Elberton or the Company by the Agent or its counsel expressly regarding the Agent for use in the Offering Circular; (viiiii) since the Qualification Date, no event related to Elberton has occurred that should have been set forth in an amendment or supplement to the Offering Statement and Offering Circular that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of Elberton; (iii) since the Qualification Date, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of Elberton; (iv) the representations and warranties in Section 5 are true and correct with the same force and effect as though expressly made at and as of the Closing Date (except to the extent made as of an earlier date); (v) Elberton has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by it after the Closing Date; (vi) no order suspending the Merger Conversion has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary PartiesElberton, no person has sought to obtain review of threatened by the final action of the FRBFDIC, the Division GDBF, the OCC, or any other applicable regulator approving the ConversionGovernmental Authority.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, Agent (i) there shall have been no material adverse change in the financial condition, results of operations or business of the any Primary Parties, considered as one enterprise, from that as of Party since the latest dates as of which such condition is set forth in the ProspectusOffering Circular, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRBFDIC, the Division GDBF, the FRB or the FDIC OCC any direction (oral or written) to make any material change in the method of conducting their its business with which it has not complied (which direction, if any, subject to Section 23, shall have been disclosed to the Agent) or which materially and adversely that would affect be reasonably likely to have a Material Adverse Effect on the financial condition, results of operations or business of the Primary Oconee Parties, taken as a whole, or on Elberton, as applicable; (iviii) none of the Primary Parties shall not have been in default (nor shall an event have occurred whichthat, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board board, other administrative agency or other administrative agencyGovernmental Authority, not disclosed in the ProspectusOffering Circular, shall be pending or, to the knowledge of any of the Primary Parties, threatened against the any of the Primary Parties Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the such Primary Parties, taken as a wholeParty; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(il) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf ▇▇▇▇▇▇▇ & Company, P.C.▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf ▇▇▇▇▇▇▇ & Company, P.C. ▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion on the consolidated financial statements and related notes of the Mid-Tier Company as of December 31, 2011 2022 and 20122021, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tierincome, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engcomprehe
Appears in 2 contracts
Sources: Agency Agreement (Oconee Financial Corp), Agency Agreement (Oconee Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Lake Shore Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Lake Shore Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Lake Shore Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Charter Conversion imposed upon them by the FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB and any other applicable regulator, and the Massachusetts Charter Conversion Application shall have been approved by the Division NYSDFS and the FDIC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Lake Shore Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion or the Charter Conversion shall have been issued or proceedings therefore initiated or, to the Primary Lake Shore Parties’ knowledge, threatened by the CommissionSEC, the FRB, the Division NYSDFS, the FDIC or any other regulatory authority, except in such states in which the registration of the Offering or the Shares or the Exchange Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Exchange Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Members’ Proxy Statement and the Stockholders’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇ ▇▇▇▇▇▇, special counsel for the Lake Shore Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary Lake Shore Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ ▇▇▇▇▇▇ delivered pursuant to Section 8(c)subsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares and the Exchange Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Lake Shore Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedLake Shore Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the ProspectusPackage, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Lake Shore Parties independently, or of the Primary Lake Shore Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Lake Shore Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date Date, including the conditions set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, P.C. and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (viixii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the SEC, the FRB, the Division OCC, the FDIC or any other Federal state or state federal authority; and (viiixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain review of the final action of the FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Division FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Lake Shore Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Lake Shore Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Lake Shore Party since the latest dates as of which the financial condition of the Primary Lake Shore Parties is set forth in the Prospectus, other than transactions referred to or contemplated thereintherein or in the ordinary course of business; (iii) none of the Primary Lake Shore Parties shall have received from the FRB, the Division OCC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Lake Shore Parties taken as a whole; (iv) none of the Primary Lake Shore Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Lake Shore Parties, threatened against the any of the Primary Lake Shore Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares and the Exchange Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Lake Shore Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf ▇▇▇▇▇, ▇▇▇▇ & Company▇▇▇▇▇▇▇, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf ▇▇▇▇▇, ▇▇▇▇ & Company▇▇▇▇▇▇▇, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Company as of December 31, 2011 2024, and 2012for the year ended December 31, 2024, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)PCAOB) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Company prepared by the Mid-TierTier Company, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Lake Shore Parties and consultations with officers of the Mid-Tier Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in consolidated long-term or short-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the BankTier Company; or (C) ), except as set forth in said letter, there was any decrease in the consolidated total consolidated assets, total loans, the allowance for loan credit losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Company at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or consolidated total interest income or income, net interest income or income, net interest income after provision for loan credit losses, non-interest income or net income or increase in provision for loan losses or non-interest expense or the provision for credit losses of the Mid-TierTier Company, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierTier Company and the Bank, which are subject to the internal controls of the Mid-TierTier Company and the Bank, the accounting system and other data prepared by the Mid-TierTier Company and the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engreas
Appears in 2 contracts
Sources: Agency Agreement (Lake Shore Bancorp, Inc.), Agency Agreement (Lake Shore Bancorp, Inc. /MD/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as hereunder and the occurrence of the Closing are subject to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition conditions that (i) all representations and warranties and other statements of the Primary PPHI Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing DateTime, true and correct in all material respects, and (ii) the condition that the Primary PPHI Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to any of the PPHI Parties’ knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to any of the Primary PPHI Parties’ knowledge, threatened by the Department, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body. The Conversion Application shall have been approved by the Department.
(cb) At the Closing DateTime, the Agent shall have received the favorable opinionreceived:
(1) An opinion or opinions, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special as counsel for to the Primary PPHI Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed satisfactory to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the 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, lease and operate its properties and to conduct its business as described in the Prospectus, and, to its knowledge, is 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) Prior to the Closing Time PPIX, PCA, and PIPE were unincorporated reciprocal insurance exchanges, and after the Closing Time Positive Insurance Company will be a duly incorporated and validly subsisting Pennsylvania stock insurance company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, 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.
(iii) [Intentionally Omitted].
(iv) The authorized capital stock of HoldCo consists of 10,000,000 shares of Common Stock, $0.01 par value per share, and HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the shares of Common Stock of HoldCo to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plans against payment of the consideration calculated as set forth in the Plans, will be fully paid and nonassessable; and (b) 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 Plans and the provisions of the Standby Stock Purchase Agreement.
(v) 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 PPHI Parties; and this Agreement constitutes a valid and legal obligation of each of the PPHI Parties.
(vi) The Plans have been duly adopted by the attorneys-in-fact of PPIX, PCA and PIPE in the manner required by the Conversion Act.
(vii) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plans, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the PPHI 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 Shares will be offered.
(viii) 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.
(ix) The description of the shares of Common Stock of HoldCo contained in the Registration Statement and the Prospectus, insofar as such statements purport to summarize certain provisions of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof.
(x) 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 substance the 1933 Act Regulations.
(xi) 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 offer, sale or issuance of the Shares.
(xii) The information in the Prospectus under the captions “BUSINESS — Regulation,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the 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.
(xiii) None of the PPHI Parties is required to be registered as attached hereto an investment company under the Investment Company Act of 1940, as Exhibit D. amended.
(xiv) To such counsel’s knowledge, none of the PPHI Parties is in violation of its Organizational Documents 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 PPHI 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 Organizational Documents of any of the PPHI 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 as to matters of fact, without independent investigation, on certificates of responsible officers of the PPHI Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may rely upon certificates of officers and directors be limited to the laws of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request 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 ▇▇▇▇ delivered pursuant to Section 8(c)any other state.
(e2) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating PC addressed to the Offerings, including Agent’s participation therein, shall have been furnished prior Agent to the mailing effect that during the preparation of the Prospectus to Registration Statement and the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇Prospectus, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the PPHI Parties, representatives of the independent public accounting firm for the PPHI Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, P.C. shall PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the PPHI Parties that caused them to believe that (i) the Registration Statement at the time it was ordered effective by the Commission, (ii) the General Disclosure Package as of the 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 necessary to make the Agent may rely. 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 any belief with respect to the financial statements, schedules and other financial and statistical data included, statistical or appraisal or valuation methodology employed, or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package).
(3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the PPHI Parties and the Agent relating to the Offering, including the Agent’s participation therein. The Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fa) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto, and a letter from ▇▇▇▇▇▇ dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(b) At the Closing DateTime, the Agent shall receive letters from ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ dated the Closing Time, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) above, the “specified date” referred to in clause (iii)(C) and (D) thereof to be a date specified in such letter, which shall not be more than six business days prior to the Closing Time.
(c) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties PPHI Parties, dated as of the Closing Time, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, Agent to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedPPHI Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary PPHI Parties independently, or of the Primary PPHI Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (v) each of the Primary PPHI Parties have has complied in all material respects with all agreements and have satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date and will comply Time including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Datethis Section 10; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authorityother governmental body; (vii) no order suspending the ConversionOffering, the Offerings Conversion or the use of the Prospectus has been issued and and, to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the FRBDepartment, the Division Commission, or any other Federal federal or state authority; and (viii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain review of the final action of the FRB, Director with respect to the Division or any other applicable regulator approving the ConversionConversion Application.
(gd) None Prior to and at the Closing Time, none of the Primary PPHI Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that Effect, 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 Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(me) At or prior to the Closing DateTime, the Agent Department shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of have issued a letter from or order to PPIX, PCA, and PIPE, which shall have the FRB force of approving the Conversion Application; (iii) confirmation that and Offering, and the Commission has declared Department shall have issued a letter or order to ICG, which shall have the Registration Statement effective; (iv) certificate from force of approving the Massachusetts Department acquisition of Revenue evidencing the valid existence control of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application HoldCo by the Division; and (xi) such other documents and certificates as the Agent may reasonably requestICG.
(nf) Subsequent to the date hereof, there shall not have occurred any of the following; : (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market FINRA or by order of the Commission or any other governmental authorityauthority other than temporary trading halts (A) imposed as a result of intraday changes in the Dow ▇▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of commercial banks, federally-insured financial institutions or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations federally-insured financial institutions declared by either federal or state authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the engdate hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions,
Appears in 2 contracts
Sources: Agency Agreement (Positive Physicians Holdings,inc.), Agency Agreement (Positive Physicians Holdings,inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as Agent's obligation to sell the Shares to and close hereunder shall be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements herein of the Primary Parties herein are, at and as of the commencement of the Offerings and at and as of the Closing Date, Company are true and correct in all material respectscorrect, the condition that the Primary Parties Company shall have performed all of its obligations hereunder theretofore to be performed on or before such datesprior to the sale of the Shares and closing hereunder, and to the following further additional conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have has been declared effective by the Commission, the Holding Company Application Commission (and the Conversion Application date of effectiveness shall be referred to herein as the "Effective Date"). All filings required by Rules 424, 430A and 434 under the Act shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no timely made. No stop order suspending the effectiveness of the Registration Statement thereof shall have been issued under and no proceeding for that purpose shall have been initiated or, to the 1933 Act knowledge of the Company or proceedings therefore initiated or the Agent, threatened by the Commission or any state authority, and no order securities commission or other action suspending similar regulatory body. Any request of the authorization of Commission for additional information (to be included in the Registration Statement or the Prospectus or the consummation of the Conversion otherwise) shall have been issued or proceedings therefore initiated or, complied with to the Primary Parties’ knowledge, threatened by satisfaction of the Commission, the FRB, the Division or any other Federal or state authorityAgent and its legal counsel.
(cb) At the Closing Date, the The Agent shall not have received advised the favorable opinionCompany that the Registration Statement or Prospectus, dated as of the Closing Date and addressed to the Agent and for its benefitor any amendment thereof or supplement thereto, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain contains any untrue statement of a fact which is material fact or omit omits to state a fact which is material fact and is required to be stated therein or is necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading; (iiprovided, however, that this Section 8(b) since shall not apply to statements in, or omissions from, the date the Registration Statement or Prospectus became authorized for final use, no event has occurred which should have been set forth in an or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change Company by the Agent specifically for use in the condition, financial or otherwise, or in the earnings, capital, properties or business preparation of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and Statement or the Prospectus, there has been no material adverse change or any such amendment or supplement.
(c) Subsequent to the Effective Date, and except as contemplated or referred to in the conditionProspectus, financial the Company shall not have incurred any direct or otherwisecontingent liabilities or obligations material to the Company, or in the earningsentered into any material transactions, capitalexcept liabilities, properties obligations or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising transactions in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (iv) other than a change in the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as number of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior outstanding shares of Common Stock due to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness exercise of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission options or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth warrants described in the Registration Statement and the Prospectus), and since the respective dates as of which information is given or any change in the Registration Statement and short-term debt or long-term debt (including capitalized lease obligations) of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any change or any development involving a prospective change in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, there shall not have been any Material Adverse Effect that is the effect of which, in the Agent’s reasonable judgment sufficiently material and adverse as to make of the Agent makes it impracticable or inadvisable to proceed with the Offerings offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectusbeing delivered.
(hd) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 The Agent shall have received from the FRBopinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming Agent covering certain corporate matters to the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection effect that:
(i) The Company as been duly incorporated and is validly existing in good standing under the laws of this Section 8the State of Colorado; has the corporate power to own, lease and operate its properties and conduct its businesses as described in the “specified date” referred Prospectus; and is duly qualified to do business as a foreign corporation in clause (i) good standing in all jurisdictions where the ownership or leasing of subsection (h) its properties or the conduct of its business requires such qualification and in which the failure to be so qualified or in good standing would have a date specified in material adverse effect on condition (financial or otherwise), shareholders' equity, results of operations, business, properties or prospects of the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing DateCompany.
(lii) At The Company has the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent number of authorized and outstanding shares of capital stock of the Primary Parties Company as set forth under the caption "Capitalization" of the Prospectus, and all issued and outstanding capital stock of the Company has been duly authorized and is experienced validly issued, fully paid and expert in nonassessable. There are no statutory preemptive rights, or to the area best knowledge of corporate appraisals within the meaning such counsel, no similar subscription or purchase rights of Title 12 securities holders of the Code Company with respect to issuance or sale of Federal Regulationsthe Shares and the Warrants by the Company pursuant to this Agreement, Section 192.200(b), (ii) stating in effect that and no rights to require registration of shares of Common Stock or other securities of the Appraisal prepared by such firm complies Company because of the filing of the Registration Statement exist. The Shares and the Warrants conform as to matters of law in all material respects to the description of such made in the Prospectus, and such description accurately sets forth the material legal provisions thereof required to be set forth in the Prospectus.
(iii) The Shares have been duly authorized and, upon delivery to the Agent against payment therefor, will be validly issued, fully paid and nonassessable.
(iv) The Warrants have been duly authorized and issued and constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws effecting creditors' rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Common Stock issuable upon exercise of the Warrants has been duly authorized and reserved by the Company and when issued as provided for in the Warrants, will be duly and validly issued, fully paid and non-assessable and will conform in all material respects to the description thereof in the Prospectus.
(v) The certificates evidencing the Shares comply as to form with the applicable requirements of Title 12 provisions of the Code of Federal Regulations, and (iii) further stating that its opinion laws of the aggregate pro forma market value State of the Holding Company including the Bank, as most recently updated, remains in effectColorado.
(mvi) At The Agent's Warrant has been duly authorized and issued and constitutes a legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization or prior similar laws effecting creditors' rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Common Stock issuable upon exercise of the Agent's Warrant has been duly authorized and reserved by the Company and when issued as provided for in the Agent's Warrant, will be duly and validly issued, fully paid and non-assessable and will conform in all material respects to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or description thereof in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engProspectus.
Appears in 2 contracts
Sources: Agency Agreement (Act Teleconferencing Inc), Agency Agreement (Act Teleconferencing Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Hoyne Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Hoyne Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Hoyne Parties shall have conducted the Conversion and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued by the Commission under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Hoyne Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Hoyne Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authoritycontribution, or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Hoyne Bancorp.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date Date, of V▇▇▇▇▇ Price P.C., in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the Hoyne Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering its opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Hoyne Parties), nothing has come to its attention that would lead it to believe that the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from W▇▇▇▇▇ LLP dated the date hereof and addressed to the Agent and for its benefitAgent, of such letter (i) confirming that W▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of W▇▇▇▇▇ LLP, the consolidated financial statements of H▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, P.C.on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the Hoyne Parties, a reading of the minutes of the meetings of the Boards of Directors of Hoyne Parties and committees thereof and consultations with officers of the Hoyne Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special counsel mention loans, foreclosed assets, accruing troubled debt restructured loans, or material decrease in the deposits, total assets, total loans, the allowance for loan losses or stockholders’ equity, or there was any material decrease in net interest income, net interest income after provision for loan losses, income (loss) before income taxes or in total net income (loss) of Hoyne Savings for the Primary period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Hoyne Parties, which are subject to the internal controls of the accounting system of the Hoyne Parties and other data prepared by the Hoyne Parties from accounting records, to the extent specified in form such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and substance as attached hereto as Exhibit C.they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇receive a letter from W▇▇▇▇▇ LLPLLP dated the Closing Date, special counsel for addressed to the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to subsection (d) of this Section 8(c)11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselHoyne Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary Hoyne Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of Hoyne Savings by Hoyne Bancorp, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve in approving the Division Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) 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 Hoyne Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Hoyne Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Hoyne Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesHoyne Parties independently, considered or the Hoyne Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the letter from the Federal Reserve approving the Conversion Application, including the establishment of the Foundation, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Chicago evidencing Hoyne Savings’s membership therein, (v) a certificate from the FDIC evidencing Hoyne Savings’ insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing Date, none of the Primary Hoyne Parties shall will have received from the FRBFederal Reserve, the Division IDFPR, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(n) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a Hoyne Party and delivered to the Agent or which materially to counsel for the Agent shall be deemed a representation and adversely would affect warranty by such Hoyne Party, to the financial conditionAgent as to the statements made therein.
(o) A blue sky memorandum from V▇▇▇▇▇ Price P.C. relating to the Offering, results of operations or business of the Primary Partiesincluding Agent’s participation therein, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days furnished prior to the date mailing of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, to Hoyne Bancorp with a copy thereof addressed to Agent or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, upon which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as V▇▇▇▇▇ Price P.C. shall state the Agent may reasonably request; and they have found such amounts and percentages rely. The blue sky memorandum will relate to be in agreement therewith (subject to rounding)the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(kp) At the Closing Date, the Agent Shares and the Foundation Shares shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which have been approved for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally listing on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engCapital Markets.
Appears in 2 contracts
Sources: Agency Agreement (Hoyne Bancorp, Inc.), Agency Agreement (Hoyne Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary ▇▇▇▇▇ Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary ▇▇▇▇▇ Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary ▇▇▇▇▇ Parties shall have conducted the Conversion Reorganization and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law MHC Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB FRB, the OCC or the FDIC or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the MHC Notice and the Holding Company Application and the Conversion Application shall have been approved by the FRB FRB, the OCC Applications shall have been approved by the OCC and the Massachusetts FDIC Application shall have been approved by the Division FDIC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary ▇▇▇▇▇ Parties’ knowledge, threatened by the CommissionSEC, the FRB, the Division OCC or the FDIC or any other regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Foundation Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Members’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇Lord LLP, special counsel for the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary ▇▇▇▇▇ Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇▇ Lord LLP delivered pursuant to Section 8(c)subsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. Lord LLP relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. Lord LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary ▇▇▇▇▇ Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied▇▇▇▇▇ Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the ProspectusPackage, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary ▇▇▇▇▇ Parties independently, or of the Primary ▇▇▇▇▇ Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary ▇▇▇▇▇ Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date Date, including the conditions set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to Mazars USA LLP and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Commission SEC or any state or federal authority; (viixii) no order suspending the ConversionReorganization, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the SEC, the FRB, the Division OCC, the FDIC or any other Federal state or state federal authority; and (viiixiii) to the knowledge of the Primary ▇▇▇▇▇ Parties, no person has sought to obtain review of the final action of the FRB approving the MHC Notice, including the Plan included therein, or the Holding Company Application; (xiv) no order suspending the FRB’s approval of the Holding Company Application and the MHC Notice, the OCC’s approval of the OCC Applications and the FDIC’s approval of the FDIC Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by the FRB, the Division OCC or any other applicable regulator approving the ConversionFDIC and (xv) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary ▇▇▇▇▇ Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, ▇▇▇▇▇ Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary ▇▇▇▇▇ Party since the latest dates 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 FRB, the Division OCC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, ▇▇▇▇▇ Parties taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened against the any of the Primary ▇▇▇▇▇ Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary ▇▇▇▇▇ Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.Mazars USA LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. Mazars USA LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31, 2011 2016 and 20122015, and for each of the years in the two-year period ended December 31, 2016, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)PCAOB) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary ▇▇▇▇▇ Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division 1933 Act and the FDIC 1934 Act and GAAP related published rules and regulations of the SEC and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term or short-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans assets of the Bank; or (C) ), except as set forth in said letter, there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income or net income or increase in non-interest expense or the provision for loan losses or non-interest expense of the Mid-TierBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. Mazars USA LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the englette
Appears in 2 contracts
Sources: Agency Agreement (PDL Community Bancorp), Agency Agreement (PDL Community Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Home Federal Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Home Federal Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Home Federal Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB OCC and any other applicable regulatorthe FRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OCC and the FRB or any other applicable regulatorto the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB OCC, and the Massachusetts Holding Company Application shall have been approved by the Division FRB not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Home Federal Parties’ knowledge, threatened by the CommissionSEC, the FRBOCC, the Division FRB or any other regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Members’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesHolding Company and the Bank, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, J▇▇▇▇▇▇▇▇, Taff & ▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary Home Federal Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇L▇▇▇ ▇▇▇▇▇▇ delivered pursuant to subsection (c) above.
(e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Home Federal Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement and Prospectus and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement and, Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Home Federal Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Home Federal Parties independently, or of the Primary Home Federal Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Home Federal Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Home Federal Parties, threatened by the Commission SEC or any state or federal authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Home Federal Parties, threatened by the FRBSEC, the Division OCC, the FRB or any other Federal state or state federal authority; and (viii) to the knowledge of the Primary Home Federal Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator OCC approving the ConversionPlan or of the FRB approving the Holding Company Application.
(g) None of the Primary Home Federal Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Home Federal Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Home Federal Party since the latest dates as of which the financial condition of the Primary Home Federal Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary Home Federal Parties shall have received from the FRB, the Division OCC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Home Federal Parties taken as a whole; (iv) none of the Primary Home Federal Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Home Federal Parties, threatened against the any of the Primary Home Federal Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Home Federal Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.BKD LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. BKD LLP is a firm of independent registered public accountants within the applicable rules of the SEC and the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31, 2011 2014 and 20122015, and for each of the years in the two-year period ended December 31, 2015, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Home Federal Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierFHLB borrowings, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan lossestotal deposits, total deposits or total equity of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income (loss) or net interest income or net interest income after provision for loan lossesincome, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-TierBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. BKD LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii)(B) of subsection (hi) to be a date specified in the letter required by this subsection (hj) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP FinancialK▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Home Federal Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the OCC approving the Conversion Application, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iiiii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared SEC declaring the Registration Statement effective, if available; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiiv) a certificate from the FHLB-Boston Chicago evidencing the Bank’s membership therein; (ixvi) a certificate from the Maryland Department certified copy of Assessments and Taxation evidencing the good standing each of the Holding Company; (x) evidence ’s and the Bank’s Articles of approval of the Massachusetts Application by the DivisionIncorporation, Charter and Bylaws, as applicable; and (xivii) such any other documents and certificates as the that Agent may shall reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or quotations halted generally on the Nasdaq Stock Market or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, market or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges the NYSE or the Nasdaq Stock Market or in the over-the-counter market or by order of the Commission SEC, FINRA or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engassociations
Appears in 2 contracts
Sources: Agency Agreement (Best Hometown Bancorp, Inc.), Agency Agreement (Best Hometown Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary NB Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary NB Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary NB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OCC, the Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve, or with the Agent’s consent at a later time and daterespectively, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the NB Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the NB Parties’ knowledge, threatened by the OCC, the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.B:
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the NB Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the NB Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state PC permits the Agent may to rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from BKD, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents 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 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.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselNB Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary NB Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock 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, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionOCC, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBFederal Reserve, the Division Commission, or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, OCC in approving the Division Plan or any other applicable regulator approving to enjoin the Conversion.
(gi) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the NB Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the NB Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Primary NB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesNB Parties independently, considered or the NB Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(l) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and a copy of the letters from the OCC approving the Conversion Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Indianapolis evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market (“NASDAQ”), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing date, none of the Primary NB Parties shall will have received from the FRBFederal Reserve, the Division OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To FINRA shall have confirmed that it has not raised any objection with respect to the extent a sale or other disposition or transfer of shares of common stock or other securities fairness and reasonableness of the Holding Company is not otherwise prohibited by applicable law or regulation for underwriting terms and arrangements relating to the duration offering of the time period provided thereinShares.
(p) All such opinions, each of certificates, letters and documents will be in compliance with the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating the Company or the Bank and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated representation and warranty by the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including or the Bank, as most recently updatedthe case may be, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engstatements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Melrose Bancorp, Inc.), Agency Agreement (New Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary HF Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary HF Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary HF Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve and the OCC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB Federal Reserve and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on OCC, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the HF Parties, threatened by the Commission Federal Reserve, the OCC or any state authority, other regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the HF Parties’ knowledge, threatened by the CommissionFederal Reserve, the FRB, the Division OCC or any other Federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the HF Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the HF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for PLLC dated the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date date hereof and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
letter (ei) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇confirming that ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to PLLC is a firm of independent public accountants within the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing meaning of the Prospectus to 1933 Act and the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state PLLC, 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 and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the HF Parties, a reading of the minutes of the meetings of the Boards of Directors of the HF Parties and committees thereof and consultations with officers of the HF Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the HF Parties, which are subject to the internal controls of the accounting system of the HF Parties and other data prepared by the HF Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC dated the Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of obtaining or confirming exemptions, qualifications or such letter shall not be more than three business days prior to the registration of the Shares under applicable state securities lawClosing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents 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 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.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselHF Parties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iv3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(v4) the Primary HF Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Date; this Section 11;
(vi5) no stop order has been issued or, to their knowledge, is threatened, by the OCC or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division OCC or any other Federal federal or state authority; and and
(viii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve or the Division OCC in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇ Financial Advisors, Inc., dated as of the Closing Date,
(1) confirming that said firm is independent of the HF Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the HF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary HF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesHF Parties independently, considered or the HF Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated thereinprior to the Closing Date, the parties will have received (i) a copy of the letter from the Federal Reserve approving the Holding Company Application; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in letter from the Prospectus, other than transactions referred to or contemplated thereinOCC approving the Conversion Application; (iii) a copy of the order from the Commission declaring the Registration Statement effective, if available; (iv) a certificate from the FHLB-Topeka evidencing the Bank’s membership therein; (v) a certificate from the Secretary of State of the State of Maryland evidencing the valid existence of the Company; (vi) a certified copy of each of the HF Parties’ Charter and Bylaws, as applicable; and (vii) any other document that Agent may reasonably request.
(l) At the Closing Date, the Shares shall have been approved for listing on the NASDAQ Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(1) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(2) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(3) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary HF Parties shall will have received from the FRB, the Division Federal Reserve or the FDIC OCC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating any HF Party and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated the Closing Date, addressed representation and warranty by such HF Party to the Agent, confirming Agent as to the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Datetherein.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (Central Plains Bancshares, Inc.), Agency Agreement (Central Plains Bancshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Chesapeake Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Chesapeake Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Chesapeake Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB and any other applicable regulator, and the Massachusetts Application amendments to the Bank’s charter shall have been approved by the Division OCC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Chesapeake Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Chesapeake Parties’ knowledge, threatened by the CommissionSEC, the FRB, the Division OCC or any other regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Members’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Chesapeake Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary Chesapeake Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to Section 8(c)subsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. LLP relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Chesapeake Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedChesapeake Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the ProspectusPackage, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Chesapeake Parties independently, or of the Primary Chesapeake Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Chesapeake Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date Date, including the conditions set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (viixii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the SEC, the FRB, the Division OCC, the FDIC or any other Federal state or state federal authority; and (viiixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain review of the final action of the FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Division FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Chesapeake Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Chesapeake Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Chesapeake Party since the latest dates as of which the financial condition of the Primary Chesapeake Parties is set forth in the Prospectus, other than transactions referred to or contemplated thereintherein or in the ordinary course of business; (iii) none of the Primary Chesapeake Parties shall have received from the FRB, the Division OCC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Chesapeake Parties taken as a whole; (iv) none of the Primary Chesapeake Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Chesapeake Parties, threatened against the any of the Primary Chesapeake Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Chesapeake Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31, 2011 2017 and 2012December 31, 2016, and for each of the years in the two-year period ended December 31, 2017, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)PCAOB) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Chesapeake Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term or short-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) ), except as set forth in said letter, there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income or net income or increase in non-interest expense or the provision for loan losses or non-interest expense of the Mid-TierBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engspecifie
Appears in 2 contracts
Sources: Agency Agreement (CBM Bancorp, Inc.), Agency Agreement (CBM Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator)all requirements of Indiana law, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRBOTS, the Division FDIC, or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Barnes & ▇▇▇▇▇▇, P.C.Thornburg, special counsel for the Primary PartiesCompany ▇▇▇ ▇he Bank, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing federally chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Indianapolis. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion-Principal Effects of Conversion-Effect on Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no Common Shares have been issued prior to the Closing Date; at the time of the Conversion, the Agent shall Shares subscribed for pursuant to the Offering will have received been duly and validly authorized for issuance, and when issued and delivered by the favorable opinion, dated as Company pursuant to the Plan against payment of the Closing Date consideration calculated as set forth in the Plan and addressed Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the Agent extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and for its benefitpriorities pursuant thereto exist pursuant to the Plan, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors issuance of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into the Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of ▇▇▇▇ delivered pursuant to Section 8(cequitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(evii) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to The Conversion Application has been approved by the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of OTS and the Prospectus to has been authorized for use by the OTS. The OTS has approved the Holding Company with a copy thereof addressed Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and no action has been taken, and to Agent such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank, and based upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇the certificate of the inspectors of election, P.C. shall state by the Agent may rely. The blue sky memorandum will relate members of the Bank.
(ix) Subject to the necessity satisfaction of obtaining the conditions to the OTS's approval of the Conversion, no further approval, registration, authorization, consent or confirming exemptionsother order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, qualifications or the registration issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or The Nasdaq Stock Market (as to which no opinion need by rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, federal and state law and all applicable state securities rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(fxiii) At the Closing Date, the Agent shall receive a certificate The terms and provisions of the Chief Executive Officer and the Chief Financial Officer of each Shares of the Primary Parties Company conform, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Dateall material respects, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given description thereof contained in the Registration StatementStatement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the General Disclosure Package Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus, there has been no Prospectus of such documents and exhibits is accurate in all material adverse change in respects and fairly presents the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; information required to be shown.
(ivxvi) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied The Plan complies in all material respects with all agreements applicable federal and have satisfied all conditions on their part Indiana laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission OTS, the Commission, the FDIC, or any state authority; (vii) no order suspending authority to suspend the Conversion, the Offerings Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, instituted or threatened by the FRBOTS, the Division Commission, the FDIC, or any other Federal or state authority; and (viii) authority and, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBOTS approving the Plan, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementConversion Application, the General Disclosure Package and Prospectus, any material loss Holding Company Application 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvii) Prior To such counsel's Actual Knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of its Articles of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to and at the Closing Date: (i) such counsel's Actual Knowledge, in the reasonable opinion default or violation of the Agentany obligation, there shall 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 been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary PartiesCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, considered as one enterprisethe execution and delivery of this Agreement, from that as the incurrence of the latest dates as of which such condition is 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 Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition establishment of the Primary Parties is set forth liquidation account); and such action will not result in the Prospectus, other than transactions referred to or contemplated therein; (iii) none any violation of the Primary Parties shall have received provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Bank or, to such counsel's Actual Knowledge, result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and/or The Nasdaq Stock Market need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Indiana. The Bank's Charter and Bylaws comply in all material respects with federal law.
(xx) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixxi) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included The information in the Prospectus are not in conformity with under the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied captions "Regulation," "The Conversion," "Restrictions on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing Acquisition of the Holding Company; (x) evidence " and "Description of approval Capital Stock," 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 correct in all material respects. The description of the Massachusetts Application Conversion process in the Prospectus under the caption "The Conversion" 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 fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion-Principal Effects of the Conversion--Tax Effects" has been reviewed by such counsel and fairly describes the opinions rendered by them to the Company and the Bank with respect to such matters. In addition, such counsel shall state that during the preparation of the Conversion Application, the Registration Statement and the Prospectus, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the Conversion Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in the Conversion Application, the Registration Statement or the Prospectus and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Division; Company and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent Bank), nothing has come to their attention that would lead them to believe that the date hereofConversion Application, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on Registration Statement, the New York Stock Exchange (the “NYSE”) or in the over-the-counter marketProspectus, or quotations halted generally on any amendment or supplement thereto (other than the Nasdaq Stock Marketfinancial statements, or minimum or maximum prices for trading have been fixedthe notes thereto, or maximum ranges for prices for securities have been required by either and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contained an untrue statement of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engmate
Appears in 2 contracts
Sources: Agency Agreement (Lincoln Bancorp /In/), Agency Agreement (Lincoln Bancorp /In/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB Federal Reserve Board and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve Board, the FRB, the Division Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special P.C. and/or local counsel for acceptable to the Primary PartiesAgent, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit C.E. The opinion may be limited to matters governed by the laws of the United States and the States of Illinois and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States and the State of Maryland, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(d2) At The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the Closing Dateeffect that, during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included or omitted from, or statistical or appraisal methodology employed in, the Agent shall have received the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for KBW, with respect to such matters as the Agent, in form and substance as attached hereto as Exhibit D. Such Agent may reasonably require; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of ▇▇▇▇ delivered ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 8(c10(b)(4)), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(e5) A blue sky memorandum Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) As of the date hereof, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and the “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans or non-performing assets, or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the March 31, 2013 statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses or non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus and the General Disclosure Package 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties or business affairs of the Primary Parties independentlyParties, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied the best of their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the effectiveness of Offering, the Registration Statement has been initiated orExchange, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the FRBFederal Reserve Board, the Division Commission, or any other Federal federal or state authority; and (viiivii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator Federal Reserve Board in approving the Plan or to enjoin the Conversion, and (viii) that the officers and directors of the Primary Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(bb).
(g) None At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ and Company, Inc., dated as of the Closing Date, (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial conditioncondition or in the earnings, results of operations capital, properties or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition affairs 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken considered as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engone ente
Appears in 2 contracts
Sources: Agency Agreement (AJS Bancorp, Inc.), Agency Agreement (AJS Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Eastern Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Eastern Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Eastern Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB RegulationsBHCA, the FRB Commitments and Massachusetts Banking Law Regulations (except to the extent waived or otherwise approved by the FRB FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB FRB, the Division or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Eastern Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Eastern Parties’ knowledge, threatened by the Commission, the FRB, the Division Division, or any other Federal or state regulatory authority.
(c) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall have received the favorable opinionopinion and negative assurance statement, dated as of the Closing Date and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇ and for its their benefit, of ▇▇▇▇▇▇, counsel for the Eastern Parties, in form and substance as attached hereto as Exhibit A.
(d) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall have received the favorable opinion and negative assurance statement, dated as of the Closing Date and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇ and for their benefit, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers satisfactory to the Agent and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇.▇. ▇▇▇▇ delivered pursuant to Section 8(c)▇▇▇.
(e) A Prior to the mailing of the Prospectus, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including the Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to the Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall receive have received a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Eastern Parties in form and substance reasonably satisfactory to the Agent’s CounselAgent and ▇.▇. ▇▇▇▇▇▇, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Eastern Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Eastern Parties independently, or of the Primary Eastern Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Eastern Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Eastern Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Eastern Parties, threatened by the FRB, the Division Division, or any other Federal or state regulatory authority; and (viii) to the best knowledge of the Primary Eastern Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Eastern Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, except that individually or in the aggregate would not have a Material Adverse Effect, 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Eastern Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Eastern Parties shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Eastern Parties taken as a whole; (iviii) none of the Primary Eastern Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Eastern Parties, threatened against the any of the Primary Eastern Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Eastern Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Eastern Parties.
(i) Concurrently with the execution of this Agreement, the Agent and ▇.▇. ▇▇▇▇▇▇ shall receive have received (i) a letter from Wolf Ernst & Company, P.C.Young LLP, dated as of the date hereof and addressed to the Agent: (i) Agent and ▇.▇. ▇▇▇▇▇▇, confirming that Wolf Ernst & Company, P.C. Young LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that form and substance reasonably satisfactory to the Agent and ▇.▇. ▇▇▇▇▇▇, containing statements and information of the type customarily included in its opinion accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included certain financial information contained in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties Registration Statement and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during provided that the period from the date “cut-off date” for purposes of the latest consolidated financial statements included in the Prospectus to a specified date such letter shall not be more than three business days prior to the date of this Agreement; and (ii) a certificate of the chief financial officer of the MHC, dated as of the date hereof and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇, with respect to certain financial data contained in the Registration Statement and the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of providing “management comfort” with respect to such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tierinformation, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet form and income statement included in the Prospectus and ended on the latest month end prior substance reasonably satisfactory to the date of the Prospectus as compared to the corresponding period in the preceding year; Agent and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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)▇.▇. ▇▇▇▇▇▇.
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall receive have received (i) a letter dated the Closing Date, addressed to the AgentAgent and ▇.▇. ▇▇▇▇▇▇, confirming the statements made by Wolf Ernst & Company, P.C. Young LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the immediately preceding paragraph; provided that the “specified cut-off date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing DateDate and (ii) a certificate of the chief financial officer of the MHC, dated as of the date hereof and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇, confirming the statements made in the certificate delivered by such officer pursuant to the immediately preceding paragraph.
(lk) At the Closing Date, the Holding Company shall receive have received a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Eastern Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Massachusetts Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receivehave received: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate certificates from the Massachusetts Department Secretary of Revenue evidencing the valid existence State of the MHC; (v) certificate from the Commonwealth of Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-TierMHC, the Holding Company and EIG; (viv) a certificate from the Division evidencing the good standing of the Bank; (viivi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivii) a certificate from the FHLB-Boston FHLBB evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiviii) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the The Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, federal or federal savings and loan associations state chartered depository institutions or a general moratorium on the withdrawal of deposits from commercial banks federal or federal savings and loan associations state chartered depository institutions declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, the Holding Company shall have filed a Form 8-A with the Commission registering the Shares under Section 12(b) of the Exchange Act.
(o) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Eastern Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(p) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Eastern Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Eastern Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Eastern Bankshares, Inc.), Agency Agreement (Eastern Bankshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOTS, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the FRB, the Division Commission or any other Federal or state authority.governmental body
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP, in form and substance satisfactory to the Agent and counsel for the Agent as set forth in Exhibit E hereto. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance as attached hereto as Exhibit C.
(d) At to the Closing Date, effect that during the Agent shall have received the favorable opinion, dated as preparation of the Closing Date Registration Statement and addressed to the Agent and for its benefit, of SilverProspectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, Taff counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPL.L.P., special counsel for Stifel, with respect to such matters as the Agent, in form and substance as attached hereto as Exhibit D. Such Agent may reasonably require; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
(4) The letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating ▇ L.L.P. in form and substance to the Offerings, including Agent’s participation therein, shall have been furnished prior to effect that during the mailing preparation of the Prospectus to Registration Statement and the Holding Company with a copy thereof addressed to Agent or upon which Prospectus, Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), 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 at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state LLP addressed to the Holding Company and the Agent may relyrelating to the offering, including Agent’s participation therein. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ParenteBeard LLC, dated the date hereof and addressed to the Agent, such letter (i) confirming that ParenteBeard LLC is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ParenteBeard LLC’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties as of and for the interim period ended March 31, 2010, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the March 31, 2010, unaudited financial condition data included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses, non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from 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 ParenteBeard LLC dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessRegistration Statement; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied the best of their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the effectiveness of Offering, the Registration Statement has been initiated orExchange, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the FRBOTS, the Division Commission, or any other Federal federal or state authority; and (viiivii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator OTS in approving the Plan or to enjoin the Conversion, and (viii) that the officers and directors of the Primary Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(cc).
(g) None 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, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial conditioncondition or in the earnings, results of operations capital, properties or business affairs of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any the Primary Party since Parties, independently or considered as one enterprise, from the latest dates 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 FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engt
Appears in 2 contracts
Sources: Agency Agreement (FedFirst Financial Corp), Agency Agreement (FedFirst Financial CORP)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB IDFI Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board, the IDFI, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB Federal Reserve Board and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on IDFI, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the Federal Reserve Board, the Commission, the FRB, IDFI or the Division FDIC or any other Federal regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent's counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ Silver, F▇▇▇▇▇▇▇, T▇▇▇ & T▇▇▇▇▇▇, P.C., special counsel for the Primary Parties▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus, the proxy statement for the special meeting of the Voting Member of the MHC (the “Proxy Statement”) and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of BKD, LLP, the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve Board; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Mid-Tier Holding Company and the Bank and committees thereof and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Mid-Tier Holding Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company and other data prepared by the Mid-Tier Holding Company from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to Section 8(c11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At or prior to Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve Board, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBCommission, the Division IDFI, the FDIC or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve Board, the Division FDIC or any other applicable regulator the IDFI in approving the Applications or to enjoin the Conversion.
(gh) 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,
(ii) stating in effect that the Appraisal complies in all material respects with requirements of the Federal Reserve Board, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesParties independently, considered or the Primary Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated thereinprior to the Closing Date, (i) a copy of the letter from the Federal Reserve Board approving the Holding Company Application including the establishment of the Foundation; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in letter from the Prospectus, other than transactions referred to or contemplated thereinIDFI approving the IDFI Application; (iii) a copy of the order from the Commission declaring the Registration Statement effective, if available; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLBs evidencing the Bank’s memberships therein; (vi) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; (vii) a certified copy of the Foundations’ Charter and Bylaws; and (viii) any other documents that Agent shall reasonably request.
(l) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Parties shall will have received from the FRBFederal Reserve Board, the Division IDFI, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating any Primary Party and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated the Closing Date, addressed representation and warranty by such Primary Party to the Agent, confirming Agent as to the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Datetherein.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (Richmond Mutual Bancorporation, Inc.), Agency Agreement (Richmond Mutual Bancorporation, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary OBA Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary OBA Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary OBA Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Form AC and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary OBA Parties’ knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesCompany and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary OBA Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary OBA Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary OBA Parties independently, or of the Primary OBA Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary OBA Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary OBA Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary OBA Parties, threatened by the FRB, the Division OTS or any other Federal or state authority; and (viii) to the best knowledge of the Primary OBA Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary OBA Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, OBA Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 OBA Parties shall have received from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, OBA Parties taken as a whole; (iviii) none of the Primary OBA Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary OBA Parties, threatened against the any of the Primary OBA Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, OBA Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary OBA Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier MHC as of December 31June 30, 2011 2009 and 20122008, and for each of the years in the three-year period ended June 30, 2009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator OTS and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier MHC prepared by the Mid-TierMHC, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary OBA Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, OTS and accounting principles generally accepted in the Division and the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt borrowings of the Mid-TierMHC, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity net assets of the Mid-Tier MHC at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierMHC, which are subject to the internal controls of the Mid-TierMHC, the accounting system and other data prepared by the Mid-TierMHC, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP in the letter delivered by it pursuant to subsection (ig) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary OBA Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB OTS approving the Form AC, the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared declaring the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue OTS evidencing the valid existence of the MHCBank, the MHC and OBA Bancorp; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (viiiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiiv) a certificate from the FHLB-Boston Atlanta evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the OBA Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the OBA Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such OBA Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (OBA Financial Services, Inc.), Agency Agreement (OBA Financial Services, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary GB Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary GB Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary GB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the GB Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the GB Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the GB Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the GB Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, Conversion Applications, the Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, the financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the GB Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the GB Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the GB Parties, which are subject to the internal controls of the accounting system of the GB Parties and other data prepared by the GB Parties from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to subsection (d) of this Section 8(c)11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselGB Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary GB Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by GBI, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve in approving the Division Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the GB Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the GB Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary GB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesGB Parties independently, considered or the GB Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the letter from the Federal Reserve approving the Conversion Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-New York evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s and Commercial Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the Primary GB Parties shall will have received from the FRBFederal Reserve, the Division OCC, the Department or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a GB Party and delivered to the Agent or which materially to counsel for the Agent shall be deemed a representation and adversely would affect warranty by such GB Party, to the financial conditionAgent as to the statements made therein.
(o) A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇, results of operations or business of P.C. relating to the Primary PartiesOffering, taken as a whole; (iv) none of the Primary Parties including Agent’s participation therein, shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days furnished prior to the date mailing of the Prospectus, except as has been described in the Prospectusto GBI with a copy thereof addressed to Agent or upon which L▇▇▇ ▇▇▇▇▇▇, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as P.C. shall state the Agent may reasonably request; and they have found such amounts and percentages rely. The blue sky memorandum will relate to be in agreement therewith (subject to rounding)the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(jp) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company GBI is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E B hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E C hereto, relating to the sales and certain other dispositions or transfers of shares of common stock Common Stock or certain other securities of the Holding Company GBI on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (Generations Bancorp NY, Inc.), Agency Agreement (Generations Bancorp NY, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion Conversion, including the Offering, in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), BHC Act and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Offering imposed upon them by the FRB or any other applicable regulatorAgencies.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been be approved by the FRB and the Massachusetts Application shall have been approved by the Division Agencies not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRB, the Division Agencies or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.▇▇▇, special counsel for the Primary PartiesCompany and the Bank, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Company has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Maryland; the Company is qualified to do business as a foreign corporation in Illinois and in each jurisdiction in which the conduct of its business requires such qualification.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank has been organized and is a validly existing Illinois savings bank in capital stock form of organization, authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock has been duly authorized, and is validly issued, fully paid and non-assessable and is owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Chicago. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "Allied First Bank's Conversion - Effects of the Conversion - Depositor's Rights if We Liquidate," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Upon consummation of the Offering, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," no shares of Common Stock have been issued prior to the Closing Date; at the time of the Offering, the Agent shall Shares subscribed for pursuant to the Offering will have received been duly and validly authorized for issuance, and when issued and delivered by the favorable opinion, dated as Company pursuant to the Plan against payment of the Closing Date consideration calculated as set forth in the Plan and addressed Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the Agent and for its benefitdescription thereof contained in the Prospectus. To such counsel's Actual Knowledge, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for upon the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors issuance of the Primary Parties delivered pursuant hereto or Shares, good title to the Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as such counsel shall reasonably request may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions, the deposits of which are insured by the FDIC and bank holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions and their holding companies, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of ▇▇▇▇ delivered pursuant to Section 8(cequitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(evii) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇The Conversion Application has been approved by the OBRE and the FDIC and the Prospectus has been authorized for use by the Agencies, P.C. relating and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval. The Holding Company Application has been approved by the FRB and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank.
(ix) Subject to the Offerings, including Agent’s participation therein, shall have been furnished prior satisfaction of the conditions to the mailing Agencies' approval of the Prospectus to Offering, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇execution and delivery of this Agreement, 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 issuance of the Shares and the consummation of the Offering, except as may be required under applicable state the securities law.
or blue sky laws of various jurisdictions (fas to which no opinion need be rendered) At and except as may be required under the Closing Daterules and regulations of the NASD (as to which no opinion need be rendered). To such counsel's Actual Knowledge, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there Offering has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied consummated in all material respects in accordance with all agreements Conversion Regulations and have satisfied all the BHC Act, except that no opinion is rendered with respect to (a) the Conversion Application, the Holding Company Application, the Registration Statement or Prospectus, which are covered by other clauses of this opinion, (b) the satisfaction of the post-Offering conditions on their part to be performed in the Conversion Regulations or satisfied at in the Agency approvals of the Conversion Application and the Holding Company Application, (c) the securities or prior to "blue sky" laws of various jurisdictions and (d) the Closing Date rules and will comply in all material respects with all obligations to be satisfied by them after regulations of the Closing Date; NASD.
(vix) The Registration Statement is effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, threatened by the Commission or any state authority; Commission.
(viixi) no order suspending At the Conversiontime the Conversion Application, including the Prospectus contained therein, was approved by the OBRE and the FDIC, the Offerings or Conversion Application, including the use Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, Illinois and federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered). At the time the Holding Company Application, including the Prospectus has been issued and no proceedings for that purpose are pending orcontained therein, to the knowledge of the Primary Parties, threatened was approved by the FRB, the Division or any other Federal or state authority; and (viii) Holding Company Application, including the Prospectus contained therein, complied as to form in all material respects with the knowledge requirements of the Primary PartiesConversion Regulations, no person has sought to obtain review of Illinois and federal law and all applicable rules and regulations promulgated thereunder (other than the final action of the FRBfinancial statements, the Division or any notes thereto, and other applicable regulator approving the Conversiontabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(gxii) None At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the Primary Parties shall have sustained1933 Act and the 1933 Act Regulations, since and (ii) the date Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the latest financial statements included 1933 Act, the 1933 Act Regulations, the Conversion Regulations, the BHC Act and federal law.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fireand the form of certificate used to evidence the Shares is in due and proper form.
(xiv) To such counsel's Actual Knowledge, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court there are no legal or governmental actionproceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, order other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company or decreethe Bank is a party or of which any of their property is the subject, otherwise than as set forth which are not described in the Registration Statement and the Prospectus, and since including ordinary routine litigation incidental to the respective dates Company's or the Bank's business, are, considered in the aggregate, not material.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Holding Company Application, the Registration Statement or the Prospectus or required to be filed as of which information is given exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Holding Company Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Holding Company Application, 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.
(xvi) To such counsel's Actual Knowledge, the Company and the Bank have conducted the Offering, in all material respects, in accordance with all applicable requirements of the Plan and applicable Illinois and federal law. The Plan complies in all material respects with all applicable Illinois and federal laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; no order has been issued by the OBRE, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, there shall not have and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the OBRE, the Commission, the FDIC, or any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material state authority and adverse as no person has sought to make it impracticable obtain regulatory or inadvisable to proceed with the Offerings or the delivery judicial review of the Shares on final action of the terms and in Agencies, approving the manner contemplated in Plan, the Conversion Application or the Prospectus.
(hxvii) Prior To such counsel's Actual Knowledge, the Company and the Bank have obtained all material federal licenses, permits and other federal governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of its articles of incorporation, charter and bylaws, as appropriate or, to and at the Closing Date: (i) such counsel's Actual Knowledge, in the reasonable opinion default or violation of the Agentany obligation, there shall 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 been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary PartiesCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, considered as one enterprisethe execution and delivery of this Agreement, from that as the occurrence of the latest dates as of which such condition is 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 Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition establishment of the Primary Parties is set forth liquidation account); and, such action will not result in the Prospectus, other than transactions referred to or contemplated therein; (iii) none any violation of the Primary Parties shall have received provisions of the charter or bylaws of the Company or the Bank or, result in any violation of any applicable federal law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the laws of the State of Maryland; the Bank's charter and bylaws comply in all material respects with the rules and regulations of the Agencies.
(xx) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from the FRBOBRE, the Division FRB or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixxi) Concurrently with The information in the execution of this Agreement, Prospectus under the Agent shall receive a letter from Wolf & Company, P.C., dated as captions "Summary - The Stock Offering," "Summary - Terms of the date hereof Offering," "Summary - Termination of the Offering," "Risk Factors" (relating to takeover defensive provisions), "Allied First Bank's Conversion," "How We Are Regulated," "Restrictions on Acquisition of Allied First Bancorp and addressed Allied First Bank" and "Description of Capital Stock of Allied First Bancorp, Inc.," to the Agent: (i) confirming extent that Wolf & Companysuch information constitutes matters of law, P.C. summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form correct in all material respects with the applicable accounting requirements and related published rules and respects. The discussion of statutes or regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came described or referred to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with accurate summaries and fairly present the 1933 Act, applicable accounting requirements information required to be shown. The information under the caption "Allied First Bank's Conversion - Effects of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that Conversion - Tax Effects of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engConversio
Appears in 2 contracts
Sources: Agency Agreement (Allied First Bancorp Inc), Agency Agreement (Allied First Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Cullman Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Cullman Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Cullman Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB and any other applicable regulator, and the Massachusetts Application amendments to the Bank’s charter shall have been approved by the Division OCC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Cullman Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Cullman Parties’ knowledge, threatened by the CommissionSEC, the FRB, the Division OCC or any other regulatory authority, except in such states in which the registration of the Offering or the Shares or the Exchange Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Exchange Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Members’ Proxy Statement and the Stockholders’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇ ▇▇▇▇▇▇, special counsel for the Cullman Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary Cullman Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ ▇▇▇▇▇▇ delivered pursuant to Section 8(c)subsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares and the Exchange Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Cullman Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedCullman Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the ProspectusPackage, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Cullman Parties independently, or of the Primary Cullman Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Cullman Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date Date, including the conditions set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to ▇▇▇▇▇ LLP and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (viixii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the SEC, the FRB, the Division OCC, the FDIC or any other Federal state or state federal authority; and (viiixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain review of the final action of the FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Division FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Cullman Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Cullman Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Cullman Party since the latest dates as of which the financial condition of the Primary Cullman Parties is set forth in the Prospectus, other than transactions referred to or contemplated thereintherein or in the ordinary course of business; (iii) none of the Primary Cullman Parties shall have received from the FRB, the Division OCC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Cullman Parties taken as a whole; (iv) none of the Primary Cullman Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Cullman Parties, threatened against the any of the Primary Cullman Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares and the Exchange Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Cullman Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31, 2011 2020 and 20122019, and for each of the years in the two-year period ended December 31, 2020, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)PCAOB) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Cullman Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term or short-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) ), except as set forth in said letter, there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income or net income or increase in non-interest expense or the provision for loan losses or non-interest expense of the Mid-TierBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engre
Appears in 2 contracts
Sources: Agency Agreement (Cullman Bancorp, Inc. /MD/), Agency Agreement (Cullman Bancorp, Inc. /MD/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Offering are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties Holding Company and the Bank herein are, contained are at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Holding Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been Applications approved by the FRB and the Massachusetts Application shall have been approved by the Division Regulatory Agencies not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the Holding Company's or the Bank's best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Holding Company's or the Bank's best knowledge, threatened by the Regulatory Agencies, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Krei▇ ▇▇▇▇▇▇▇ ▇▇▇x▇▇▇▇▇ & ▇ape▇▇▇▇ ▇▇▇, counsel for the Holding Company and the Bank, 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 State of Indiana, 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 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 Holding Company.
(ii) The Bank is a duly organized and validly existing Indiana banking corporation 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 Regulatory Agencies; the issuance and sale of the capital stock of the Bank to the Holding Company has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefore as described in the Prospectus, 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 deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed by law and to such no proceedings for the termination or revocation of such insurance are pending or threatened.
(iv) Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Holding Company and the Bank will be as set forth in the Prospectus under the caption "Capitalization," and no Shares have been or will be issued and outstanding prior to the Closing Date; the Shares of the Holding Company to be subscribed for in the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company against payment of the consideration therefor, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Holding Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Holding Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 8 and 9 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 financial institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vi) Subject to the satisfaction of the conditions to the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal 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 Offering.
(vii) The Applications, including the Prospectus as filed with the Regulatory Agencies, been approved by the Regulatory Agencies. The FRB has issued its order of approval under the BHCA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the FRB and no action has been taken, or to such counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(viii) 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.
(ix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences to the Holding Company, the Bank or any person subscribing for shares in the Offering.
(x) The terms and provisions of the Shares conform to the description thereof contained in the Registration Statement and the Prospectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes 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 Shares are in due and proper form.
(xi) At the time the Applications, including the Prospectus contained therein, were approved, the Applications (as amended or supplemented) complied as to form in all material respects with the requirements of the Regulatory Agencies and all applicable laws, rules and regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such 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 Regulatory Agencies approving the Applications.
(xii) At the time that the Registration Statement became effective (i) the Registration Statement (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein 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; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, 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, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xiii) There are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or, (ii) seeking to prevent the Offering.
(xiv) The information in the Prospectus under the caption "Supervision and Regulation", to the extent that it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been prepared 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).
(xv) The Holding Company and the Bank have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations are in full force and effect and the Holding Company and the Bank are in all material respects complying therewith.
(xvi) Neither the Holding Company nor the Bank is in violation of its articles of incorporation or its bylaws or to the best of such counsel's knowledge, in violation of any 21 obligation, agreement, covenant or condition contained in any material 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, which violation would have a material adverse effect on the financial condition of the Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Holding Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not conflict with, constitute a 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 the Holding Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Holding Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Holding Company or the Bank is subject. In addition, such action will not result in any material violation of the provisions of the articles of incorporation or bylaws of the Holding Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Holding Company and the Bank are not in violation in any material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇ape▇▇▇▇, P.C.▇▇P, special counsel for the Primary PartiesHolding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At to the Closing Dateeffect that: In addition, during the Agent shall have received the favorable opinion, dated as preparation of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request Registration Statement and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇Prospectus, Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇ape▇▇▇▇, P.C. relating ▇▇P, participated in conferences with certain officers of and other representatives of the Bank and the Holding Company, counsel to the OfferingsAgent, including Agent’s participation therein, shall have been furnished prior to the mailing representatives of the Prospectus to independent public accountants for the Bank and the Holding Company with a copy thereof addressed to and representatives of the Agent or upon at which ▇▇▇the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, ▇▇P, is not passing upon and does not assume the accuracy of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Holding Company), nothing has come to the attention of Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions▇▇P, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Datethat caused Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date▇▇P, to believe that the effect that: (i) they have carefully examined the Prospectus and, in their opinionRegistration Statement, at the time it was declared effective by the SEC or the Prospectus became authorized for final useor as of its date, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; misleading (ii) since the date the Prospectus became authorized for final use, it being understood that counsel need express no event has occurred which should have been set forth in an amendment comment or supplement opinion with respect to the Prospectus which has not been so set forthfinancial statements, including specifically, but without limitation, any material adverse change in the condition, schedules and other financial or otherwiseand statistical data included, or in the earningsstatistical or appraisal methodology employed, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration StatementStatement or Prospectus). The opinion shall be limited to matters governed by the laws of the United States or the State of Indiana. In rendering such opinion, such counsel may rely (A) as to matters involving the General Disclosure Package application of laws of any jurisdiction other than the United States or Indiana, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent and the ProspectusAgent's counsel, there has been no material adverse change in as long as such other opinion indicates that the conditionAgent may rely on the opinion, financial or otherwiseand (B) as to matters of fact, or in to the earningsextent such counsel deems proper, capital, properties or business on certificates of responsible officers of the Primary Parties independently, Holding Company and the Bank and public officials; provided copies of any such opinion(s) or certificates of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 public officials are true and correct delivered to you together with the same force opinion to be rendered hereunder by counsel to the Holding Company and effect as though expressly made at and the Bank. The opinion of such counsel for the Holding Company shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(3) The favorable opinion, dated as of the Closing Date; (v) , of counsel for the Primary Parties have complied in all material respects Agent, with all agreements respect to such matters as the Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness directors of the Registration Statement has been initiated or, to Holding Company and the knowledge of the Primary Parties, threatened by the Commission Bank delivered pursuant hereto or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversionas such counsel may reasonably request.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated as of the date hereof and addressed to the Agent: , (i) such letter confirming that Wolf & Company, P.C. Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent registered public accountants within the applicable rules 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 Holding Company Accounting Oversight Board (United States) or the Bank is required by the Application or Item 10 of the Registration Statement, and stating in effect that in its Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP's opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion Holding Company included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, 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 FRB Commission thereunder and any other applicable regulator and the 1933 Actgenerally accepted accounting principles; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a reading of the latest available consolidated unaudited interim financial statements of the Mid-Tier Holding Company and the Bank prepared by the Mid-TierHolding Company and the Bank, a reading of the minutes of the meetings of the Boards Board of Directors/Trustees of each Directors of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (Lafayette Community Bancorp), Agency Agreement (Lafayette Community Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Association, the Company and the MHC herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Association, the Company and the MHC shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Association, the Company and the MHC shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB OTS, the SEC or any other applicable regulatorGovernmental Authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application shall have been Reorganization Applications approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization or the Offering shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Association’s, the Company’s and the MHC’s knowledge, threatened by the CommissionOTS, the FRB, the Division SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(i) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇S▇▇▇▇▇, P.C., special counsel for the Primary PartiesAssociation, the Company and the MHC, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they :
1. The Company and the MHC have carefully examined been duly incorporated and are validly existing in good standing as corporations under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties United States.
2. The Company and the conditions set forth in this Section 8 MHC have been satisfied; (iii) since the respective dates corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package and the Prospectus.
3. The Association is duly incorporated and is a validly existing federally-chartered stock savings association, there duly authorized and with corporate power to conduct its business and own its property as described in the Registration Statement, the General Disclosure Package and the Prospectus. The activities of the Association, the Company and the MHC prior to or following the Reorganization as described in the Registration Statement, General Disclosure Package and the Prospectus are permitted by the rules, regulations and practices of the OTS. When issued in accordance with the Plan, all of the capital stock of the Association to be outstanding upon completion of the Reorganization will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel’s knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
4. The Association is a member in good standing of the FHLB-Atlanta. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and to such counsel’s knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened.
5. Immediately following the consummation of the Offering, the issued and outstanding Common Stock of the Company will be within the range set forth in the General Disclosure Package and the Prospectus under the caption “Capitalization,” no Common Stock has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company. The issuance of the Shares is not subject to preemptive rights (v) except for subscription rights as set forth in the Primary Parties have complied Plan), and the terms and provisions of the Common Stock conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants. The Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company or the Association.
6. The Association, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Association, the Company and the MHC and this Agreement is a valid and binding obligation of the Association, the Company and the MHC, enforceable against the Association, the Company and the MHC in accordance with all agreements its terms, except as the Association enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or rights of creditors of federally chartered savings institutions or savings and have satisfied all conditions on their part loan holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
7. All corporate acts and other proceedings required to be performed taken by or satisfied at on the part of the Association, the Company and the MHC to adopt and approve the Plan and to consummate the transactions contemplated by the Plan and this Agreement, have been properly taken, including approval by the Association’s members and duly adopted by the required vote of the directors of the Association, the Company and the MHC.
8. The Reorganization Applications have been approved by OTS, and the Prospectus and Members’ Proxy Statement have been authorized for use by the OTS, and no action has been taken and none is pending, or prior to such counsel’s knowledge, is threatened to revoke any such authorization or approval.
9. Subject to the Closing Date satisfaction of the conditions to the OTS’ approval of the Reorganization, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, administration or other governmental board or body is required in connection with the execution and will comply in all material respects with all obligations delivery of this Agreement, the issuance of the Shares and the Foundation Shares and the consummation of the Reorganization, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be satisfied rendered) and except as may be required under the rules and regulations of the FINRA and/or The Nasdaq Capital Market (as to which no opinion need be rendered).
10. The Registration Statement is effective under the 1933 Act; and, to counsel’s knowledge, any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by them after the Closing DateRule 424(b) or Rule 433; (vi) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel’s knowledge, threatened by the Commission or any state authority; (vii) no order suspending SEC.
11. At the Conversiontime the Reorganization Applications, including the Plan, the Offerings or Prospectus and Members’ Proxy Statement contained therein, were approved by the use OTS, the Reorganization Applications, including the Plan, the Prospectus and Members’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations, the 1934 Act Regulations, federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
12. At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus has been issued (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no proceedings for that purpose are pending oropinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations and the Reorganization Regulations.
13. The terms and provisions of the Common Stock of the Company conform, in all material respects, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, any material loss and the form of certificate used to evidence the Common Stock complies with applicable federal laws.
14. To such counsel’s knowledge, there are no legal or interference with its business from firegovernmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, explosion(ii) seeking to prevent the offer, flood sale or other calamityissuance of the Shares, whether or not covered by insurance(iii) seeking to prevent the issuance of the Foundation Shares, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth (iv) which are required to be disclosed 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated those disclosed therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition .
15. None of the Primary Parties is set forth in Association, the ProspectusCompany or the MHC are required to be registered as an investment company under the Investment Company Act of 1940, other than transactions referred to or contemplated therein; (iii) as amended.
16. To such counsel’s knowledge, none of the Primary Parties shall have received Association, the Company or the MHC is in violation of any directive from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business its respective business.
17. 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 Reorganization Applications, the Registration Statement, the General Disclosure Package or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Reorganization Applications, the Registration Statement, the General Disclosure Package or the Prospectus. The description in the Reorganization 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.
18. The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the Reorganization Regulations; and, to such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Reorganization Applications, the Holding Company Application or the Prospectus.
19. To such counsel’s knowledge, none of the Association, the Company or the MHC is in violation of its charter and bylaws, or in default or violation of any agreement or instrument filed as an exhibit to the Registration Statement; the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (a) to such counsel’s knowledge, 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 Association, the Company or the MHC pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it has not complied the Association, the Company or the MHC is a party that is filed as an exhibit to the Registration Statement, (which directionb) result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Association, if anyor (c) result in any material violation of any applicable federal or state law, shall act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the FINRA and/or The Nasdaq Capital Market need be rendered) or order or court order, writ, injunction or decree.
20. The Association’s, the Company’s and the MHC’s Charter and Bylaws each comply in all material respects with the laws of the United States, including the rules and regulations of the OTS except as may have been disclosed waived by the OTS.
21. The information in the Prospectus under the captions “Our Policy Regarding Dividends,” “Supervision and Regulation,” “Federal, State and Local Taxation,” “The Reorganization and the Offering,” “Restrictions on the Acquisition of Oconee Federal Financial Corp. and Oconee Federal Savings and Loan Association,” “Oconee Federal Charitable Foundation” and “Description of Capital Stock of Oconee Federal Financial Corp.” to the Agent) extent that such information constitutes matters of law, summaries of legal matters, documents or which materially proceedings, or legal conclusions, has been reviewed by such counsel and adversely would affect is correct in all material respects. The description of the financial conditionReorganization process in the Prospectus under the caption “The Reorganization and the Offering” to the extent that such information constitutes matters of law, results summaries of operations legal matters, documents or business proceedings, or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present in all material respects the information required to be shown. The information under the caption “The Reorganization and the Offering – Tax Effects of the Reorganization” and “Oconee Federal Charitable Foundation – Tax Considerations” has been reviewed by such counsel and by Cherry Bakaert & Holland, L.L.P. and fairly describes the opinions rendered by such counsel and by Cherry Bakaert & Holland, L.L.P. to the Association, the Company and the MHC with respect to such matters. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Primary PartiesParties and certificates of public officials. Such counsel’s opinion shall be limited to matters governed by federal laws. For purposes of such opinion, taken as no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a whole; (iv) none director or executive officer of any 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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) received a copy of such proceedings, order, stop order or action. In addition, such opinion may be limited to present statutes, regulations and judicial interpretations and to facts as they presently exist; in rendering such opinion, such counsel need assume no obligation to revise or supplement it should the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application present laws be changed by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (Oconee Federal Financial Corp.), Agency Agreement (Oconee Federal Financial Corp.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary SBI Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary SBI Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary SBI Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Charter Conversion imposed upon them by the FRB Federal Reserve, the OCC and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application shall have been approved by the Federal Reserve and the Charter Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementOCC and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the SBI Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the SBI Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received received:
(1) The opinion, dated as of the favorable opinionClosing Date, of ▇▇▇▇ ▇▇▇▇▇▇, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A; and
(2) The letter, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as set forth in the last paragraph of Exhibit A.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of ▇▇▇▇▇▇▇, the Company’s consolidated financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Audit Standard No. 4105) of the latest available unaudited consolidated interim financial statements prepared by the Company, a reading of the minutes of the meetings of the Boards of Directors of the SBI Parties and committees thereof and consultations with officers of the SBI Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Company and its subsidiaries, which are subject to the internal controls of the accounting system of the Company and its subsidiaries and other data prepared by the Company and its subsidiaries from their 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).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇, dated as of the Closing Date and addressed to the Agent and for Agent, confirming the statements made by its benefitletter delivered pursuant to subsection (d) of this Section 11, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, P.C., special counsel for which shall not be more than three business days prior to the Primary Parties, in form and substance as attached hereto as Exhibit C.Closing Date.
(df) At the Closing Date, counsel to the Agent shall have received the favorable opinion, dated been furnished with such documents as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors sale of the Primary Parties delivered pursuant hereto Shares as herein contemplated and related proceedings, or as such counsel shall reasonably request in order to evidence the accuracy of any of the representations and warranties, or the opinion fulfillment of ▇▇▇▇ delivered pursuant to Section 8(c)any of the conditions herein contained.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselSBI Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse otherwise than as to make it impracticable set forth or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.;
(hiii) Prior to 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: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; ;
(iv) none of the Primary SBI Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form complied in all material respects with the applicable accounting requirements all material agreements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, satisfied all conditions on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 part to be in agreement therewith (subject to rounding).
(j) To the extent a sale performed or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At satisfied at or prior to the Closing Date, including the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; conditions on their part contained in this Section 11;
(v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application no stop order has been issued or, to their knowledge, is threatened, by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; body;
(iivi) a general moratorium on no order suspending the operations Offering, the Conversion, the acquisition of commercial banksall outstanding capital stock of the Bank by SBI, or federal savings the effectiveness of the Registration Statement has been issued and loan associations to their knowledge, no proceedings for any such purpose have been initiated or a general moratorium on threatened by the withdrawal Federal Reserve, the Commission, the OCC or any other governmental authority;
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of deposits from commercial banks the action of the Federal Reserve in approving the Conversion Application and the Holding Company Application or federal savings and loan associations declared by federal or state authoritiesto enjoin the Conversion; (iii) the engand
Appears in 2 contracts
Sources: Agency Agreement (Seneca Bancorp, Inc.), Agency Agreement (Seneca Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, Agents hereunder are subject, to the extent not waived in writing by the AgentAgents, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion Conversion, including the contribution to the Foundation, in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Commissioner and the FDIC, the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application shall have been approved by the FRB Commissioner and the Massachusetts Application shall have been approved not objected to by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, FDIC; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the CommissionCommissioner, the FRBFDIC, the Division FRB the SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent Agents shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent Agents and for its their benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the AgentCompany, the MHC, the Mid-Tier Holding Company and the Bank, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is legally existing as a business corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances State of Connecticut; the MHC has been duly incorporated and is legally existing as a nonstock corporation and mutual holding company under which they were made, not misleadingthe laws of the State of Connecticut; the Mid-Tier Holding Company has been duly incorporated and is legally existing as a business corporation and mutual holding company subsidiary holding company under the laws of the State of Connecticut.
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business Each of the Primary Parties Company, the MHC and the conditions set forth in this Section 8 have been satisfied; (iii) since Mid-Tier Holding Company has the corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package Prospectus and any Permitted Free Writing Prospectus.
(iii) The Bank is a legally existing Connecticut-chartered savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus. Upon completion of the Conversion in accordance with the Plan, all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law (exclusive of any opt in provisions) , and to such counsel’s knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion and Offering-Effects of Conversion on Depositors and Borrowers-Effect on Liquidation Rights” and “-Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the issued and outstanding Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued in connection with incorporation of the Company, no Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, there will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been no received by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Connecticut law or regulation, the Company’s Certificate of Incorporation or pursuant to the regulations of the Commissioner, FDIC or FRB (except to the extent that subscription rights and priorities thereto exist pursuant to the Plan), and the terms and provisions of the Shares conform in all material adverse change respects to the description thereof contained in the condition, financial or otherwise, or in Prospectus. The form of certificate used to evidence the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied Shares complies in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior the requirements of Connecticut General Corporation Law. Upon the issuance of the Shares, good title to the Closing Date and Shares will comply in all material respects with all obligations be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be satisfied asserted against the purchasers thereof by them after the Closing Date; third-party claimants.
(vi) The Company, the MHC, the Mid-Tier Holding Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan, including the contribution to the Foundation. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, the MHC, the Mid-Tier Holding Company and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC, the Mid-Tier Holding Company and the Bank, enforceable against the Company, the MHC, the Mid-Tier Holding Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the Commissioner and not objected to by the FDIC, as applicable, and the Holding Company Application has been approved by the FRB and the Prospectus and Corporator’s Informational Material have been declared effective and cleared by the Commissioner and the FDIC, no action has been taken, and to such counsel’s knowledge, is pending, or is threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan and the contribution to the Foundation have been duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Bank, approved by the required vote of the Corporators of the MHC and approved by the requisite vote of the shareholders of the Mid-Tier Holding Company.
(ix) Subject to the satisfaction of the conditions to the Commissioner’s, the FDIC’s and the FRB’s approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, including the contribution to the Foundation, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433, and such counsel has been advised by the SEC staff that no stop order suspending the effectiveness of the Registration Statement has proceedings with respect thereto have been initiated instituted or, to the knowledge of such counsel, are pending or threatened under the Primary Parties19▇▇ ▇▇▇.
(xi) At the time the Conversion Application, threatened including the Prospectus and Corporator’s Informational Material and Shareholders’ Proxy Statement contained therein, was approved by the Commission or any state authority; (vii) no order suspending the ConversionCommissioner, the Offerings or the use of the Prospectus has been issued FDIC and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; Conversion Application, including the Prospectus and (viii) Corporator’s Informational Material and Shareholders’ Proxy Statement contained therein, complied as to form in all material respects with the knowledge requirements of the Primary PartiesConversion Regulations, the 1934 Act Regulations (other than the Corporator’s Informational Material), federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no person has sought opinion need be rendered), it being understood, however, that in passing upon the compliance as to obtain review form of the final action of Conversion Application, we have assumed that the FRB, the Division or any other applicable regulator approving the Conversionstatements made therein are correct and complete.
(gxii) None of At the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in time that the Registration Statement and the Prospectusbecame effective, and since the respective dates as of which information is given in (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the Prospectus1933 Act Regulations, there shall not have been any Material Adverse Effect that is in and (ii) the Agent’s reasonable judgment sufficiently material Prospectus (other than the financial statements, the notes thereto, and adverse other tabular, financial, statistical and appraisal data included therein, as to make it impracticable or inadvisable which no opinion need be rendered) complied as to proceed form in all material respects with the Offerings or the delivery requirements of the Shares on 1933 Act, the terms 1933 Act Regulations, the Conversion Regulations and in the manner contemplated in the Prospectusapplicable federal law.
(hxiii) Prior to and at the Closing Date: (i) in the reasonable opinion of the AgentTo such counsel’s knowledge, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 outstanding indebtedness; (v) no action, suit or proceeding, proceeding at law or in equity is pending or threatened in writing against or affecting any of the Company, the MHC, the Mid-Tier Holding Company or the Bank or any of their properties before or by any federal court or state governmental official, commission, board or other administrative agency, not disclosed in the Prospectusauthority or body, shall be pending oror any arbitrator, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect have a material adverse effect on the financial condition, results of operations or business ability of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this AgreementCompany, the Agent shall receive a letter from Wolf & CompanyMHC, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered Holding Company or the Bank to consummate the transactions contemplated by their opinion included this Agreement or which is required to be disclosed in the ProspectusRegistration Statement or the Prospectus and is not so disclosed.
(xiv) To such counsel’s knowledge, and any there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other more recent unaudited financial statements included instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, comply as to form the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects with and fairly presents the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 information required to be in agreement therewith (subject to rounding)shown.
(jxv) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the applicable requirements of Title 12 Conversion Regulations; and, to such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the Code of Federal Regulations, and (iii) further stating that its opinion final action of the aggregate pro forma market value of Commissioner, the FDIC or the FRB on the Plan, the Conversion Application, the Holding Company including Application or the Bank, as most recently updated, remains in effectProspectus.
(mxvi) At or prior to the Closing DateThe execution and delivery of this Agreement, the Agent shall receive: (i) a copy incurrence of the letter from obligations herein set forth and the FRB approving consummation of the transactions contemplated herein do not (a) 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 Company, the MHC, the Mid-Tier Holding Company Application; (ii) or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier Holding Company or the Bank is a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation party that the Commission has declared is filed as an exhibit to the Registration Statement effective; (ivother than the establishment of the liquidation accounts), (b) certificate from result in any violation of the Massachusetts Department provisions of Revenue evidencing the valid existence Certificate of Incorporation or Bylaws of the Company or the Certificate of Incorporation or the Bylaws of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of , the Mid-Tier; Tier Holding Company or the Bank or, (vic) a certificate from result in any violation of any applicable federal or Connecticut law, act, regulation (except that no opinion with respect to the Division evidencing securities and blue sky laws of various jurisdictions or the good standing rules or regulations of the Bank; (viiFINRA and/or Nasdaq Global Select Market need be rendered) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably requestor order or court order, writ, injunction or decree.
(nxvii) Subsequent SBR Mortgage Company, SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and Rockville Bank Mortgage, Inc. are validly existing as corporations under the laws of the State of Connecticut, and have the power and authority to own, lease and operate their properties and to conduct their businesses as described in the Prospectus; the activities of SBR Mortgage Company, SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and Rockville Bank Mortgage, Inc. as described in the Prospectus are permitted to subsidiaries of a Connecticut chartered savings bank under the laws of the State of Connecticut; all of the issued and outstanding shares of common stock of SBR Mortgage Company, SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and Rockville Bank Mortgage, Inc. are owned beneficially and of record by the Bank free and clear of any security interest, mortgage, pledge, lien or encumbrance.
(xviii) The Foundation has been duly incorporated and is validly existing as a non-stock corporation under the laws of the State of Connecticut with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; no approvals are required for the contribution to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or Foundation as described in the over-the-counter market, or quotations halted generally on Prospectus other than those set forth in the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by approval order of the Commission or any other governmental authority; Commissioner dated December 30, 2010.
(iixix) a general moratorium on The information in the operations of commercial banks, or federal savings Prospectus under the captions “Our Dividend Policy” “Supervision and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engRegulation,” “Taxation,” “T
Appears in 2 contracts
Sources: Agency Agreement (Rockville Financial New, Inc.), Agency Agreement (Rockville Financial Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, and the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB and Federal Reserve Board, the Massachusetts New York Application shall have been approved by the Division not later than 5:30 p.m. on the date New York State Department of this Agreement, or with the Agent’s consent at a later time Financial Services and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve Board, the FRBNew York State Department of Financial Services, the Division Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special P.C. and/or local counsel for acceptable to the Primary PartiesAgent, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit C.E. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States and the State of Maryland, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(d2) At The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the Closing Dateeffect that, during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness, or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules, and other financial and statistical data included or omitted from, or statistical or appraisal methodology employed in, the Agent shall have received the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP, special counsel for KBW, with respect to such matters as the Agent, in form and substance as attached hereto as Exhibit D. Such Agent may reasonably require; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of ▇▇▇▇ delivered ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(4) The letter of ▇▇▇▇▇▇▇ Procter LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇ Procter LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties, and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 8(c10(b)(4)), ▇▇▇▇▇▇▇ Procter LLP has not independently verified the accuracy, completeness, or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ Procter LLP that caused ▇▇▇▇▇▇▇ Procter LLP to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules, and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(e5) A blue sky memorandum Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) As of the date hereof, the Agent shall receive a letter from ▇▇▇▇▇▇▇ & Co., LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇ & Co., LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations, and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇ & Co., LLP’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act, and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee, and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and the “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans or non-performing assets, or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the March 31, 2014 statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses or non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus and the General Disclosure Package 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 ▇▇▇▇▇▇▇ & Co., 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 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties properties, or business affairs of the Primary Parties independentlyParties, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied the best of their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the effectiveness of Offering, the Registration Statement has been initiated orExchange, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion, or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the FRBFederal Reserve Board, the Division Commission, or any other Federal federal or state authority; and (viiivii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator Federal Reserve Board in approving the Plan or to enjoin the Conversion; and (viii) that the officers and directors of the Primary Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(bb).
(g) None 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; (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations; and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order 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 Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity, or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter marketearnings, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engcap
Appears in 2 contracts
Sources: Agency Agreement (Pathfinder Bancorp Inc), Agency Agreement (Pathfinder Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Mutual Savings Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Mutual Savings Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Mutual Savings Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OCC, the Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve, or with the Agent’s consent at a later time and daterespectively and, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued by the Commission under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Mutual Savings Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Mutual Savings Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authoritycontribution, or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Magnolia Bancorp.
(c) At the Closing Date, the Agent shall have received the favorable opinion, received:
(1) The opinion dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, P.C. relating in form and substance satisfactory to the OfferingsAgent and counsel for the Agent, including Agent’s participation therein, shall have been furnished prior to the mailing effect as attached hereto as Exhibit A; and
(2) The letter, dated as of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ Closing Date, of Silver, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, P.C. in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as set forth in the last paragraph of Exhibit A.
(d) Concurrently with the execution of this Agreement, the Agent shall state receive a letter from ▇▇▇▇▇▇▇▇▇▇▇ LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇▇▇▇▇▇ LLP, the financial statements of Mutual Savings included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review of the latest available unaudited interim financial statements prepared by Mutual Savings, a reading of the minutes of the meetings of the Boards of Directors of the Mutual Savings Parties and committees thereof and consultations with officers of the Mutual Savings Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings, non-performing loans or special mention loans, or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity of Mutual Savings, or there was any decrease in total interest income, net interest income, net interest income after provision for loan losses, income (loss) before income taxes or in total net income (loss) of Mutual Savings for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of Mutual Savings, which are subject to the internal controls of the accounting system of Mutual Savings and other data prepared by Mutual Savings from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇▇ LLP dated the Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of obtaining or confirming exemptionsthis Section 11, qualifications or the registration of “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Shares under applicable state securities lawClosing Date.
(f) At the Closing Date, counsel to the Agent shall have been furnished with such documents 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 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.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselMutual Savings Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary Mutual Savings Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission OCC or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, OCC or the Division Federal Reserve in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) 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 Mutual Savings Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Mutual Savings Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Mutual Savings Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake, hurricane, 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of the Primary Parties, considered as one enterprise, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letter from the FRB OCC approving the Holding Company Conversion Application; , (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared declaring the Registration Statement effective; , (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division FHLB-Dallas evidencing the good standing of the Bank; Mutual Savings’ membership therein, (viiv) a certificate from the FDIC evidencing the Bank’s Mutual Savings’ insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; , and (xivi) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; authority other than temporary trading halts;
(ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engfinancial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing Date, none of the Mutual Savings Parties will have received from the Federal Reserve, the OCC, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied which direction, if any, shall have been disclosed to the Agent, only if such information is not considered confidential supervisory information as defined in 12 C.F.R. §309.5(g)(8).
(n) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a Mutual Savings Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Mutual Savings Party to the Agent as to the statements made therein.
(o) A blue sky memorandum from Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to Magnolia Bancorp with a copy thereof addressed to Agent or upon which Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(p) At the Closing Date, the Shares shall have been approved for quotation on the OTCQB Market.
Appears in 2 contracts
Sources: Agency Agreement (Magnolia Bancorp, Inc.), Agency Agreement (Magnolia Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary CF Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary CF Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary CF Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the MHC Notice and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the CF Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the CF Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A:
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the MHC Notice, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the CF Parties, at which conferences the contents of the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, 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 and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements of the Bank prepared by the CF Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), 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 CF Parties from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to subsection (d) of this Section 8(c)11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCF Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary CF Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator Federal Reserve in approving the ConversionPlan or to enjoin the Reorganization.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the CF Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary CF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesCF Parties independently, considered or the CF Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the MHC Notice and a copy of the letters from the Federal Reserve approving the MHC Notice, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Cincinnati evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the Primary CF Parties shall will have received from the FRBFederal Reserve, the Division OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the date hereof, there shall not have occurred any Agent and to counsel for the Agent. Any certificate signed by an officer of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges Company or the Nasdaq Stock Market Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by order of the Commission Company or any other governmental authority; (ii) a general moratorium on the operations of commercial banksBank, or federal savings and loan associations or a general moratorium on as the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) case may be, to the engAgent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Cincinnati Bancorp), Agency Agreement (Cincinnati Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all of the respective representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects (except for those representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects), the condition that each of the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion Merger in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorOCC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Merger imposed upon them by the FRB or any other applicable regulatorOCC to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by Prior to the CommissionClosing Date, the Holding Company Application and the Conversion Application Plan shall have been approved by the FRB Voting Members of Commonwealth in accordance with the Plan, the Conversion Regulations, the applicable provisions, if any, of Commonwealth’s charter and bylaws and the Massachusetts Application Proxy Statement.
(c) The Applications (other than the Holding Company Waiver Request) shall have been approved by the Division OCC and the FRB, as applicable, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, date (which consent is hereby granted with respect to the Holding Company Waiver Request); and at the Closing Date, no stop order suspending the effectiveness approval of the Registration Statement Applications shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission OCC or FRB, or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, threatened by the CommissionSEC, the FRB, the Division or OCC, any other Federal state authority or state authorityGovernmental Authority.
(cd) At the Closing Date, the The Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇in form and substance reasonably satisfactory to the Agent and counsel for the Agent, in the form attached hereto as Exhibit D. The opinion may be limited to matters governed by the laws of the United States and of the State of Maryland. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (b) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Town Parties and public officials; provided that 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 Town Parties. The opinion of such counsel for the Town 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 Town 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.
(e) The Agent shall have received the letter of L▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed reasonably satisfactory to the Agent and for its benefitAgent’s counsel, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for to the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors effect that during the preparation of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request Registration Statement and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇Prospectus, L▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Town Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(d) of this Agreement), L▇▇▇ ▇▇▇▇▇▇ & 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 L▇▇▇ ▇▇▇▇▇▇ that caused L▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the SEC and as of the date of such letter contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, P.C. notes to financial statements, schedules and other financial and statistical data included in or omitted from, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus).
(f) A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished to the Company prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities lawlaws.
(fg) The Agent shall have received the opinion, dated as of the Closing Date, of N▇▇▇▇▇ ▇▇▇▇, counsel for Commonwealth, in form and substance satisfactory to the Agent and counsel for the Agent, in the form of Exhibit E. The opinion may be limited to matters governed by the laws of the United States. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the 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 Commonwealth and public officials; provided that 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 Commonwealth. The opinion of such counsel for Commonwealth 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 Commonwealth 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.
(h) The Agent shall have received the letter of N▇▇▇▇▇ ▇▇▇▇, in form and substance satisfactory to the Agent and the Agent’s counsel, to the effect that during the preparation of the Registration Statement and the Prospectus, N▇▇▇▇▇ ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Town Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(g), N▇▇▇▇▇ ▇▇▇▇ 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 N▇▇▇▇▇ ▇▇▇▇ that caused N▇▇▇▇▇ ▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the SEC and as of the date of such letter, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus.
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement and Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Registration Statement and Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Registration Statement and Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Town Parties and the conditions set forth in this Section 8 10 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterpriseBank, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Town Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the ConversionConversion Merger, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBSEC, the Division OCC, or any other Federal Governmental Authority.
(j) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of Commonwealth in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) since the date the Prospectus became authorized for final use, there has been no material adverse change in the condition, financial or state authorityotherwise, or in the earnings, capital, properties or business of Commonwealth and the conditions set forth in this Section 10 have been satisfied; (ii) the representations and warranties in Section 5 are true and correct with the same force and effect as though expressly made at and as of the Closing Date (viiiexcept to the extent made as of an earlier date); (iii) Commonwealth has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by it after the Closing Date; (vi) no order suspending the Conversion Merger has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary PartiesCommonwealth, no person has sought to obtain review of threatened by the final action of the FRBOCC, the Division or any other applicable regulator approving the ConversionGovernmental Authority.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, Agent (i) there shall have been no material adverse change in the financial condition, results of operations or business of the any Primary Parties, considered as one enterprise, from that as of Party since the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division FRB or the FDIC OCC any direction (oral or written) to make any material change in the method of conducting their its business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect be reasonably likely to have a Material Adverse Effect on the financial condition, results of operations or business of the Primary Town Parties, taken as a whole, or on Commonwealth, as applicable; (iviii) none of the Primary Parties shall not have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board board, other administrative agency or other administrative agencyGovernmental Authority, not disclosed in the Prospectus, shall be pending or, to the knowledge of any of the Primary Parties, threatened against the any of the Primary Parties Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the such Primary Parties, taken as a wholeParty; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(il) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.C▇▇▇▇ H▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. C▇▇▇▇ H▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Company as of December 31, 2011 2013, September 30, 2013 and 2012, and the related consolidated statements of operations, comprehensive income (loss), changes in shareholders’ equity and cash flows for the three months ended December 31, 2013 and the years ended September 30, 2013 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, the Securities Act Regulations, the Exchange Act Regulations, and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Company prepared by the Mid-TierCompany, a reading of the minutes of the meetings of the Boards Board of Directors/Trustees of each Directors of the Primary Parties Company and the Board of Directors of the Bank and consultations with officers of the Mid-Tier Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited consolidated interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBSecurities Act, the Division Exchange Act, the Securities Act Regulations, the Exchange Act Regulations, related published rules and the FDIC and GAAP applied on a basis substantially consistent with that regulations of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 2 contracts
Sources: Agency Agreement (Poage Bankshares, Inc.), Agency Agreement (Poage Bankshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Offering are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOTS, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the FRB, the Division Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special P.C. and/or local counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed acceptable to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a 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 attached hereto 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.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, and upon consummation of the Offering, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as Exhibit D. Such described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules and regulations of the OTS; all of the outstanding Common Stock of the Bank is 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 activities of the Holding Company, the MHC and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company, the MHC and the Bank are complying therewith in all material respects.
(v) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vi) The authorized capital stock of the Holding Company consists of ______________ shares of Common Stock and __________ shares of Preferred Stock; at the Closing Date, the shares contributed by the MHC to the Holding Company for issuance will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights under the charter 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.
(vii) 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).
(viii) The Plan has been duly adopted by the Board of Directors of the MHC, the Holding Company and the Bank in the manner required by the OTS Regulations and the charters and bylaws of each of the MHC, the Holding Company and the Bank.
(ix) The Offering was effected in all material respects 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 Offering imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(x) The Application has been approved by the OTS, and the Prospectus has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares and the consummation of the Offering, except as may rely upon certificates be required under the state securities or “blue sky” laws of officers various jurisdictions as to which no opinion need be rendered.
(xi) The Registration Statement has become effective under the 1933 Act, and directors 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.
(xii) The material tax consequences of the Offering 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 ▇▇▇▇▇ ▇▇▇▇▇▇ PLLC to the Primary Parties with respect to such matters.
(xiii) 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.
(xiv) 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) complied as to form in all material respects with the requirements of the OTS Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Application filed.
(xv) 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.
(xvi) 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 Offering or the offer, sale or issuance of the Shares.
(xvii) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Description of Our Capital Stock,” and “The Stock 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.
(xviii) None of the Primary Parties delivered pursuant hereto are required to be registered as an investment company under the Investment Company Act of 1940.
(xix) 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, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of Georgia. In rendering such opinion, such counsel shall reasonably request may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇ counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered pursuant to Section 8(c)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.
(e2) A blue sky memorandum from The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating in form and substance to the Offeringseffect that during the preparation of the Registration Statement and the Prospectus, including Agent’s participation thereinLuse, shall have been furnished prior Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the mailing Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the Holding Company with a copy thereof addressed statements contained therein and, although (without limiting the opinions provided pursuant to Agent or upon which Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state has not independently verified the Agent may rely. The blue sky memorandum will relate 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 necessity attention of obtaining or confirming exemptionsLuse, qualifications or Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement at the time it was declared effective by the Prospectus became authorized for final useCommission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, therein in light of the circumstances under which they were mademade not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, not misleading; (ii) since the date the Prospectus became authorized for final usenotes to financial statements, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, schedules and other financial or otherwiseand statistical data included, or in the earningsstatistical or appraisal methodology employed, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the or Prospectus or General Disclosure Package and the ProspectusPackage).
(3) The favorable opinion, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and dated as of the Closing Date, of Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P., counsel for Stifel, with respect to such matters as the Agent may reasonably require; (v) the Primary Parties have complied in all material respects with all agreements such opinion may rely, as to matters of fact, upon certificates of officers and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None directors of the Primary Parties shall have sustaineddelivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, since P.C.
(4) The letter of Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. in form and substance to the date effect that during the preparation of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. participated in conferences with certain officers of and since other representatives of the respective dates as Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which information is given the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards the foregoing, nothing has come to the attention of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. that caused Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. to believe that the Public Company Accounting Oversight Board (United States)) consisting of a reading of Registration Statement at the latest available consolidated financial statements of the Mid-Tier prepared time it was declared effective by the Mid-Tier, a reading Commission and as of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter or that the General Disclosure Package as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-TierApplicable Time, in each case for the number contained or contains any untrue statement of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior a material fact or omitted to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 state any material fact required to be in agreement therewith (subject to rounding).
(j) To the extent a sale stated therein or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engnec
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing DateDate (except to the extent such representations and warranties speak as of an earlier date), true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Offering and the Reorganization in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been MHC Applications approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated initiated, pending or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ Silver ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Taff, P.C.L.L.P., special counsel for the Primary PartiesCompany, the MHC and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they The Company and the MHC have carefully examined been duly incorporated and are validly existing as corporations under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; United States of America.
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties The Company and the conditions set forth in this Section 8 MHC have been satisfied; (iii) since the respective dates corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package and the Prospectus.
(iii) The Bank is a validly existing federally chartered savings bank in stock form, there has been no material adverse change duly authorized to conduct its business and own its property as described in the conditionRegistration Statement, financial or otherwise, or the General Disclosure Package and the Prospectus. The activities of the Bank as described in the earningsGeneral Disclosure Package and the Prospectus are permitted by the rules, capital, properties or business regulations and practices of the Primary Parties independently, or OTS. All of the Primary Parties considered as one enterpriseoutstanding capital stock of the Bank upon completion of the Offering will be duly authorized and, whether upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company free and clear of any liens, encumbrances, claims or not arising in the ordinary course of business; other restrictions.
(iv) The Bank is a member of the representations FHLB-Atlanta. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and warranties no proceedings for the termination or revocation of such insurance are pending, or to such counsel's knowledge, threatened;
(v) Each Subsidiary has been duly incorporated and is validly existing as a corporation in Section 4 good standing under the laws of the jurisdiction of its incorporation, and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect; the activities of each Subsidiary as described in the Registration Statement and Prospectus are true permitted to subsidiaries of a federally chartered savings bank, in the case of the Bank, and correct with a federally chartered mid-tier stock holding company, in the same force case of the Company, by the rules, regulations and effect practices of the OTS; all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company or the Bank, as though expressly made at the case may be, free and as clear of any security interest, mortgage, pledge, lien or encumbrance.
(vi) Immediately following the consummation of the Offering, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the General Disclosure Package and the Prospectus under the caption "Capitalization," and no Common Shares have been issued prior to the Closing Date; (v) at the Primary Parties time of the Offering, the Shares subscribed for pursuant to the Offering will have complied been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date description thereof contained in the General Disclosure Package and the Prospectus. The Shares will comply not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company or the Bank.
(vii) The authorized capital stock of the Bank is owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, or encumbrance. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid an non-assessable and was exempt from registration under the Securities Act pursuant to Section 3(a)(5) thereof.
(viii) The issuance of the MHC Shares is exempt from registration under the 1933 Act and is not subject to preemptive rights arising by operation of federal laws and regulations or the Company’s charter, except for subscription rights granted pursuant to the Plan in accordance with the OTS Regulations.
(ix) The Bank, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all material respects necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with all obligations its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be satisfied expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(x) The MHC Applications have been approved by them after the Closing Date; OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and none is pending or, to such counsel's knowledge, threatened to revoke any such authorization or approval.
(vixi) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank.
(xii) Subject to the satisfaction of the conditions to the OTS's approval of the Offering and the Reorganization, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares, and the consummation of the Offering and the Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(xiii) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel's knowledge, threatened by the Commission or any state authority; Commission.
(viixiv) The Prospectus has been declared effective by the OTS and such counsel has been advised by the OTS’ staff that no order suspending the Conversion, the Offerings effectiveness or the use of the Prospectus has been issued by the OTS and no proceedings for such purpose have been initiated or threatened by the OTS.
(xv) No further approval, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Securities pursuant to the Plan, except as may be required under the securities or “Blue Sky” laws of various jurisdictions as to which no opinion need be rendered.
(xvi) At the time the MHC Applications, including the Prospectus contained therein, were approved by the OTS, the MHC Applications, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the MHC Regulations (other than the financial statements, the notes thereto, and other tabular, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xvii) At the time that purpose are pending orthe Registration Statement became effective, (A) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (B) the Prospectus (other than the financial statements, the notes thereto, and other tabular, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) The terms and provisions of the Shares of the Company conform, in all material respects, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, any and the form of certificate used to evidence the Common Shares complies with applicable laws in all material loss respects.
(xix) There are no legal or interference with its business from firegovernmental proceedings pending or, explosionto such counsel's knowledge, flood threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or other calamity, whether or not covered by insuranceissuance of the Shares, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth (iii) which are required to be disclosed 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred those disclosed therein.
(xx) Neither the MHC, the Company nor the Bank are required to or contemplated therein; be registered as an investment company under the Investment Company Act of 1940.
(iixxi) there shall have been no material transaction entered into by To such counsel's knowledge, neither the MHC, the Company nor the Bank is in violation of any Primary Party since the latest dates 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 directive from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business its respective business.
(xxii) 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 MHC Applications, the Registration Statement, the General Disclosure Package or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC Applications, the Registration Statement, the General Disclosure Package or the Prospectus. The description in the MHC Applications, the Registration Statement, the General Disclosure Package and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xxiii) The Company, the MHC and the Bank have conducted the Offering and the Reorganization in accordance with the Plan and all applicable laws, except that no opinion is rendered with respect to (a) the MHC Applications, the Registration Statement, the General Disclosure Package or Prospectus, which it has not complied are covered by other clauses of this opinion, (which direction, if any, shall have been disclosed to b) the Agent) or which materially and adversely would affect the financial condition, results of operations or business satisfaction of the Primary Parties, taken as a whole; (iv) none post-Offering conditions in the MHC Regulations or in the OTS approval of the Primary Parties shall have MHC Applications, (c) the securities or "blue sky" laws of various jurisdictions, and (d) the rules and regulations of FINRA. The Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the MHC Regulations; no order has been in default (nor shall an event have occurred whichissued by the OTS, with notice the Commission, the FDIC, or lapse any state authority to suspend the Offering or the use of time or both, would constitute a default) under any provision of any agreement or instrument relating to any 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, not disclosed in the Prospectus, shall be pending and no action for such purposes has been instituted or, to such counsel's knowledge, threatened by the knowledge OTS, the Commission, the FDIC, or any other state authority and, to such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the Primary Parties, threatened against the any final action of the Primary Parties OTS approving the Plan, the MHC Applications or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesProspectus.
(ixxiv) Concurrently with To such counsel's knowledge, the Company, the MHC and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses as described in the Registration Statement, and all such licenses, permits and other governmental authorizations are in full force and effect, and the MHC and the Bank are in all material respects complying therewith.
(xxv) Neither the MHC, the Company nor the Bank is in violation of its Charter 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; to such counsel's knowledge, the execution and delivery of this Agreement, the Agent shall receive incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a letter from Wolf & 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 MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject; and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company, P.C.Bank or MHC, dated as or result in any violation of the date hereof and addressed any applicable federal or state law, act, regulation (except that no opinion with respect to the Agent: securities and blue sky laws of various jurisdictions or the rules or regulations of FINRA need be rendered) or order or court order, writ, injunction or decree.
(ixxvi) confirming that Wolf & The Company's, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) Bank's and stating in effect that in its opinion the consolidated financial statements MHC's Charter and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Bylaws each comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations laws of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engSta
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent Agents hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the AgentAgents, to the condition that all representations and warranties of the Primary HSB Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary HSB Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary HSB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved in writing by the FRB FRB, the FDIC, the DFI and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB FRB, the FDIC, the DFI or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB FRB, the FDIC, the DFI and the Massachusetts Application shall have been approved by the Division any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s Agents’ consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary HSB Parties’ knowledge, threatened by the Commission, the FRB, the Division FDIC, the DFI or any other Federal federal or state authority.
(c) At the Closing Date, the Agent Agents shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent Agents and for its their benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesHolding Company and the Bank, in form and substance as attached hereto as Exhibit C.D.
(d) At the Closing Date, the Agent KBW shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent KBW and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLPPrice P.C., special counsel for the AgentKBW, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).E.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s Agents’ participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent the Agents or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state the Agent Agents may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent Agents shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary HSB Parties in form and substance reasonably satisfactory to the AgentKBW’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary HSB Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary HSB Parties independently, or of the Primary HSB Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary HSB Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to best the knowledge of the Primary HSB Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary HSB Parties, threatened by the FRBFDIC, the Division DFI or any other Federal or state authority; and (viii) to the best knowledge of the Primary HSB Parties, no person has sought to obtain review of the final action of the FRBFDIC, the Division DFI or any other applicable regulator approving the Conversion.
(g) None of the Primary HSB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s Agents’ reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the AgentAgents, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, HSB Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 HSB Parties shall have received from the FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the AgentAgents) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, HSB Parties taken as a whole; (iviii) none of the Primary HSB Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the best knowledge of the Primary HSB Parties, threatened against the any of the Primary HSB Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, HSB Parties taken as a whole; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent Agents shall have reasonably requested and as agreed to by the Primary HSB Parties.
(i) Concurrently with the execution of this Agreement, the Agent Agents shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the AgentAgents: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31September 30, 2011 2013 and September 30, 2012, and for the fiscal years ended September 30, 2013 and September 30, 2012 and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB FRB, the FDIC, the DFI and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary HSB Parties and consultations with officers of the Mid-Tier HSB Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (Ai) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierBank, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Bank and (C) during the period from the date of such letter as compared with amounts shown in the latest unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus; or (D) , except as has been described in the Prospectus, there was were any decrease decreases, as compared with the corresponding period in net income or the preceding fiscal year, in total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearBank; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierHSB Parties, which are subject to the internal controls of the Mid-TierHSB Parties, the accounting system and other data prepared by the Mid-TierHSB 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 Agents may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent Agents shall receive a letter dated the Closing Date, addressed to the AgentAgents, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (hj) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary HSB Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent Agents shall receive: (i) a copy of the letter letters from the FRB FRB, the FDIC, the DFI and any other applicable regulator approving the Conversion Application and the Holding Company Application, as applicable, and authorizing the use of the Prospectus, as applicable; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iviii) certificate from certificates of appropriate government officials, including the Massachusetts Department of Revenue DFI, evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence Holding Company and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (viiiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiiv) a certificate from the FHLB-Boston Chicago evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xivi) such other documents and certificates as the Agent Agents may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agents’ reasonable judgment, makes 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 Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to KBW shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the HSB Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agents or KBW’s counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agents or to counsel for KBW. Any certificate signed by an officer of any of the HSB Parties and delivered to the Agents or to counsel for KBW shall be deemed a representation and warranty by such HSB Party to the
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Central Federal Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Central Federal Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Central Federal Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB OCC and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OCC, the FRB, or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB OCC and the Massachusetts Application shall have been approved by the Division FRB, respectively and any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Central Federal Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Central Federal Parties’ knowledge, threatened by the Commission, the FRBOCC, the Division FRB or any other Federal regulatory authority. At the Closing Date, (i) the Registration Statement and all amendments thereto shall not contain an untrue statement of material fact or omit to state authoritya material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus and the Member’s Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (iii) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, and upon which Agent’s counsel may rely upon for purposes of delivering its legal opinion pursuant to Section 8(d), of L▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Central Federal Parties, in form and substance satisfactory to the Agent and its counsel as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff Breyer & ▇▇▇▇▇▇▇ LLPAssociates PC (“Breyer & Associates”), special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).C.
(e) A Prior to the mailing of the Prospectus, a blue sky memorandum from L▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. LLC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which L▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. LLC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Central Federal Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and any Permitted Free Writing Prospectus and, in their opinion, at the time the Prospectus and any Permitted Free Writing Prospectus became authorized for final use, the Prospectus and any Permitted Free Writing Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedCentral Federal Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Central Federal Parties independently, or of the Primary Central Federal Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Central Federal Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, or threatened by the FRB, the Division OCC, or any other Federal or state regulatory authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division OCC or any other applicable regulator approving the Conversion.
(g) None of the Primary Central Federal Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Central Federal Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Central Federal Parties shall have received from the OCC or the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Central Federal Parties taken as a whole; (iviii) none of the Primary Central Federal Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Central Federal Parties, threatened against the any of the Primary Central Federal Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Central Federal Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. is P.▇.▇▇ a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Association as of June 30, 2015, December 31, 2011 2014 and 20122013, and covered by their opinion included in the Prospectus, and providing negative assurance that any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB SEC and any other applicable regulator and regulator, including the 1933 ActAct and 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Association prepared by the Mid-TierAssociation, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors and committees, as applicable, of each of the Primary Central Federal Parties and consultations with officers of the Mid-Tier Central Federal Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC Commission and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest unaudited interim consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierCentral Federal Parties, other than normal deposit fluctuations for the Bank, or Association; non-performing assets, or classified or special mention loans of the BankAssociation; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits deposits, loans receivable (net), or total equity retained earnings of the Mid-Tier Association at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-TierAssociation, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierCentral Federal Parties, which are subject to the internal controls of the Mid-TierCentral Federal Parties, the accounting system and other data prepared by the Mid-TierCentral Federal Parties, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus and any Permitted Free Writing Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii)(B) of subsection (hi) to be a date specified in the letter required by this subsection (hj) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP FinancialF▇▇▇▇▇▇ Financial Advisors, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Central Federal Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the BankAssociation, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the OCC and the FRB and any other applicable regulator approving the Conversion Application and the Holding Company Application; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation Commission that the Commission has declared the Registration Statement effective; (iviii) certificate from the Massachusetts Department certificates of Revenue appropriate government officials evidencing the valid existence and good standing of the MHCHolding Company and the Association; (viv) a certificate from the Massachusetts Missouri Department of Revenue evidencing the valid existence and good standing of the Mid-TierHolding Company; (v) a certificate from the FDIC evidencing the Association’s insurance of accounts; (vi) a certificate from the Division FHLB evidencing the good standing of the BankAssociation’s membership therein; (vii) a certificate from the FDIC evidencing the Bank’s insurance certified copy of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing each of the Holding Company; (x) evidence ’s, the Association’s and the Subsidiaries’ Articles of approval of the Massachusetts Application by the Division; Incorporation and Bylaws and (xiviii) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or quotations halted generally on the Nasdaq Stock Market or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges by the NYSE or the Nasdaq Stock Market or in the over-the-counter market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, federal or federal savings and loan associations state chartered depository institutions or a general moratorium on the withdrawal of deposits from commercial banks federal or federal savings and loan associations state chartered depository institutions declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a nationa
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank, herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator)laws of Tennessee, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Form AC and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s or the Bank’s knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & A▇▇▇▇▇▇, P.C., LLP special counsel for the Primary Parties, Company and the Bank in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Tennessee.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally-chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly-existing federally-chartered savings bank in stock form and, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank, upon completion of the Conversion, will be duly authorized and, upon payment therefor, validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Cincinnati. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and, to such counsel’s Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened. The description of the liquidation account as set forth in the Prospectus under the caption “The Conversion and Stock Offering – Effects of Conversion to Stock Form – Liquidation Account,” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Offering, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of capital stock of the Company have been issued prior to the Closing Date; at the time of the Offering, the Agent shall Common Shares subscribed for pursuant to the Conversion will have received been duly and validly authorized for issuance, and when issued and delivered by the favorable opinion, dated as Company pursuant to the Plan against payment of the Closing Date consideration calculated as set forth in the Plan and addressed Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the Agent extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and for its benefitpriorities pursuant thereto exist pursuant to the Plan, the issuance of Silverthe Shares is not subject to preemptive rights (other than subscription rights as provided in the Plan) and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel’s Actual Knowledge, ▇▇▇▇▇▇▇▇the Shares will not, Taff & ▇▇▇▇▇▇▇ LLPwhen issued, special counsel for be subject to any liens, charges, encumbrances or other claims created by the AgentCompany.
(vi) The Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the Offering have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank, in form accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or the rights of creditors of federally chartered savings institutions or holding companies as applicable, (ii) general equitable principles, (iii) laws relating to the safety and substance soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein and except that no opinion need be expressed as attached hereto as Exhibit D. Such opinion may rely upon certificates to the effect or availability of officers and directors equitable remedies or injunctive relief (regardless of the Primary Parties delivered pursuant hereto whether such enforceability is considered in a proceeding in equity or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(cat law).
(evii) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to The Form AC and the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Application have been approved by the OTS, P.C. shall state the Agent may rely. The blue sky memorandum will relate to Prospectus has been authorized for use by the necessity OTS, and the acquisition by the Company of obtaining or confirming exemptions, qualifications or the registration all of the Shares under applicable state securities lawissued and outstanding capital stock of the Bank has been approved by the OTS and no action has been taken, and to such counsel’s Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(fviii) At The Plan has been duly adopted by the Closing Daterequired vote of the directors of the Company and the Bank and by the required vote of the Bank’s members.
(ix) Subject to the satisfaction of the conditions to the OTS’s approval of the Conversion and the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the Agent shall receive a certificate consummation of the Chief Executive Officer Conversion and the Chief Financial Officer of each issuance of the Primary Parties in form Shares, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and substance reasonably satisfactory to except as may be required under the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light rules and regulations of the circumstances FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties 1933 Act and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel’s Actual Knowledge, threatened by the Commission or any state authority; Commission.
(viixi) no order suspending At the Conversiontime the Form AC, including the Prospectus contained therein, was approved by the OTS, the Offerings or Form AC, including the use Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations except as waived or otherwise approved by the OTS (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus has been issued (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no proceedings for that purpose are pending oropinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the shares of common stock of the Company conform, in all material respects, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, any material loss and the form of certificate used to evidence the Shares complies with applicable laws.
(xiv) To such counsel’s Actual Knowledge, there are no legal or interference with its business from firegovernmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, explosion(ii) seeking to prevent the Conversion or the offer, flood sale or other calamity, whether or not covered by insuranceissuance of the Shares, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth (iii) which are required to be disclosed 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred those disclosed therein.
(xv) Neither the Company nor the Bank are required to or contemplated therein; be registered as an investment company under the Investment Company Act of 1940.
(iixvi) there shall have been no material transaction entered into by To such counsel’s Actual Knowledge, neither the Company nor the Bank is in violation of any Primary Party since the latest dates 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 directive from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting its respective business.
(xvii) To such counsel’s Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Form AC, the Registration Statement, the General Disclosure Package or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Form AC, the Registration Statement, the General Disclosure Package or the Prospectus. The description in the Form AC, the Registration Statement, the General Disclosure Package and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xviii) Except as waived or otherwise approved by the OTS, the Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to such counsel’s Actual Knowledge, the Conversion has been effected by the Company’s and the Bank in all material respects in accordance with the Conversion Regulations and the OTS approvals issued thereunder; to such counsel’s Actual Knowledge, no order has been issued by the OTS, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or threatened by the OTS, the Commission, the FDIC, or any other state authority and, to such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Form AC, the Holding Company Application or the Prospectus.
(xix) To such counsel’s Actual Knowledge, the Company, and the Bank have obtained all licenses, permits and other governmental authorizations currently required for the conduct of their business with businesses as described in the Registration Statement, and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xx) To such counsel’s Actual Knowledge, neither the Company nor the Bank is in violation of its Charter and Bylaws or 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 has is a party or by which it or its property may be bound, except for such defaults or violations which would not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect a material adverse impact on the financial condition, condition or results of operations or business of the Primary PartiesCompany and the Bank on a consolidated basis; to such counsel’s Actual Knowledge, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution and delivery of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as incurrence of the date hereof obligations herein set forth and addressed the consummation of the transactions contemplated herein will not, in any material respect, 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 Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject; and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company or the Bank, or result, in any material respect, in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the Agent: (i) confirming that Wolf & Company, P.C. is a firm securities and blue sky laws of independent registered public accountants within various jurisdictions or the applicable rules or regulations of the Public Company Accounting Oversight Board FINRA need be rendered) or order or court order, writ, injunction or decree.
(United Statesxxi) The Company’s Charter and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Bylaws comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations laws of the FRB State of Tennessee. The Bank’s Charter and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of Bylaws each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies comply in all material respects with the applicable requirements of Title 12 laws of the Code United States of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectAmerica.
(mxxii) At or prior The information in the Prospectus under the captions “Regulation and Supervision,” “Federal and State Taxation,” “The Conversion and Stock Offering,” “Restrictions on the Acquisition of First Advantage Bancorp and First Federal Savings Bank” and “Description of First Advantage Bancorp Capital Stock,” to the Closing Dateextent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The description of the Offering process in the Prospectus under the caption “The Conversion and Stock 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 fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present, in all material respects, the Agent information required to be shown. The information under the caption “The Conversion and Stock Offering — Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the federal and state tax opinions rendered by them and BKD, LLP, respectively, to the Company and the Bank with respect to such matters. In addition, such counsel shall receive: (i) a copy state that during the preparation of the letter from the FRB approving Form AC, the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared , the Registration Statement effective; (iv) certificate from and the Massachusetts Department of Revenue evidencing Prospectus, they participated in conferences with certain officers of, the valid existence independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of Form AC, the Holding Company; (x) evidence Company Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of approval of or otherwise verified the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or information contained in the over-the-counter marketForm AC, or quotations halted generally on the Nasdaq Stock MarketHolding Company Application, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges the Registration Statement or the Nasdaq Stock Market or by order Prospectus and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the Commission or any other governmental authority; purpose of rendering their opinion (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engrelying as to materiality as to factual matters
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLPPrice P.C., special counsel for the Agent, in form and substance as attached hereto as Exhibit D. C. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to the Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division FRB or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division FRB or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 2012 and 20122013, and covered by their opinion included in the Registration Statement, the General Disclosure Package and the Prospectus, and any other more recent unaudited financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division OCC and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Registration Statement, the General Disclosure Package and the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Registration Statement, the General Disclosure Package and the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Registration Statement, the General Disclosure Package and the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Registration Statement, the General Disclosure Package and the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E D hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause subsection (i) of subsection (h) this Section 8 to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇ & Company, LC.Inc., dated 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 Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue FRB evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue FRB evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division OCC evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiviii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”), the Nasdaq Stock Market (“Nasdaq”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Marketon, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by by, either of such exchanges the NYSE or Nasdaq or the Nasdaq Stock Market over-the-counter market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engmora
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Georgetown Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Georgetown Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Georgetown Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Georgetown Parties’ knowledge, threatened by the Commission, the FRBOCC, the Division FRB or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesHolding Company and the Bank, in form and substance as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).C.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Georgetown Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Georgetown Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Georgetown Parties independently, or of the Primary Georgetown Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Georgetown Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Georgetown Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Georgetown Parties, threatened by the FRB, the Division FRB or any other Federal or state authority; and (viii) to the best knowledge of the Primary Georgetown Parties, no person has sought to obtain review of the final action of the FRB, the Division FRB or any other applicable regulator approving the Conversion.
(g) None of the Primary Georgetown Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Georgetown Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Georgetown Parties shall have received from the FRB, the Division FRB or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Georgetown Parties taken as a whole; (iviii) none of the Primary Georgetown Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Georgetown Parties, threatened against the any of the Primary Georgetown Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Georgetown Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Georgetown Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2011 and 20122010, and for the years ended December 31, 2011 and 2010, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Holding Company prepared by the Mid-TierTier Holding Company, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Georgetown Parties and consultations with officers of the Mid-Tier Georgetown Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC FRB and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierTier Holding Company, other than normal deposit fluctuations for the BankMid-Tier Holding Company, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Holding Company and (C) during the period from the date of such letter as compared with amounts shown in the latest unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus; or (D) , except as has been described in the Prospectus, there was were any decrease decreases, as compared with the corresponding period in net income or the preceding fiscal year, in total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearTier Holding Company;; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierGeorgetown Parties, which are subject to the internal controls of the Mid-TierGeorgetown Parties, the accounting system and other data prepared by the Mid-TierGeorgetown 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Georgetown Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB and any other applicable regulator approving the Conversion Application and the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iviii) certificate from the Massachusetts Department certificates of Revenue appropriate government officials evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of , the Mid-TierTier Holding Company, the Bank and the Holding Company; (vi) a certificate from the Division evidencing the good standing of the Bank; (viiiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiiv) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Georgetown Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Georgetown Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Georgetown Party to the Agent as to the statements made therein.
(p) The “lock-up” agreeme
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, of the Offering are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties Company and the Bank herein are, contained are at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been Applications approved by the FRB and the Massachusetts Application shall have been approved by the Division Regulatory Agencies not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the Company's or Bank's best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or Bank's best knowledge, threatened by the Regulatory Agencies, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Squi▇▇▇▇ , ▇▇▇▇▇▇ ▇▇▇▇▇nd▇▇▇ & ▇▇▇emp▇▇▇, P.C.▇.L.P., special counsel for the Primary PartiesCompany and the Bank, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent to the effect that:
(di) At The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Ohio, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and to such counsel"s knowledge 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 Company.
(ii) The Bank is a duly organized and validly existing national banking association 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 Regulatory Agencies; the issuance and sale of the capital stock of the Bank to the Company has been duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, upon payment therefore as described in the Prospectus, 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 Bank is a member of the Federal Reserve and the deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed by law and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
(iv) Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Company and the Bank will be as set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date, other than as set forth in the Agent shall have received Prospectus; the favorable opinion, dated as Units of the Closing Date Company to be subscribed for in the Offering have been duly and addressed validly authorized for issuance, and when issued and delivered by the Company pursuant to the Agent plan of distribution against payment of the consideration calculated as set forth in the plan of distribution, will be fully paid and nonassessable; and the issuance of the Units is not subject to preemptive rights.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 8 and 9 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 financial institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vi) Subject to the satisfaction of the conditions to the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal 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 Units and the consummation of the Offering.
(vii) The Applications, including the Prospectus as filed with the Regulatory Agencies, has been approved by the Regulatory Agencies. The FRB has issued its order of approval under the BHCA, and the purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the FRB and no action has been taken, or to such counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(viii) 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.
(ix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences to the Company, the Bank or any person subscribing for Units in the Offering.
(x) The terms and provisions of the Units conform to the description thereof contained in the Registration Statement and the Prospectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes 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 Units are in due and proper form.
(xi) At the time the Application, including the Prospectus contained therein, was approved, the Application (as amended or supplemented) complied as to form in all material respects with the requirements of the Regulatory Agencies and all applicable laws, rules and regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such 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 Regulatory Agencies approving the Applications.
(xii) At the time that the Registration Statement became effective (i) the Registration Statement (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein 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; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, 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, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xiii) To the best of 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 Offering.
(xiv) The information in the Prospectus under the caption "Supervision and Regulation," to the extent that it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been prepared 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).
(xv) To the best of counsel's knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations are in full force and effect and the Company and the Bank are in all material respects complying therewith.
(xvi) Neither the Company nor the Bank is in violation of its benefitarticles of incorporation or its articles of association, respectively, or its code of Silverregulations or bylaws, respectively, or to the best of such counsel's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material 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, which violation would have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Company and the Bank, 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 the Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank is subject. In addition, such action will not result in any material violation of the provisions of the certificate of incorporation or bylaws of the Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Company and the Bank are not in violation in any material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP.L.P., special counsel for the AgentCompany and the Bank, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors to the effect that: In addition, during the preparation of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request Registration Statement and the opinion of Prospectus, Squi▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from , ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇nd▇▇▇ & ▇▇▇emp▇▇▇, P.C. relating ▇.L.P. participated in conferences with certain officers of and other representatives of the Bank and the Company, counsel to the OfferingsAgent, including Agent’s participation therein, shall have been furnished prior to the mailing representatives of the independent public accountants for the Bank and the Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which and related matters were discussed and, although Squi▇▇▇▇ , ▇▇▇▇▇▇ ▇▇▇▇▇nd▇▇▇ & ▇▇▇emp▇▇▇, P.C. shall state ▇.L.P. is not passing upon and does not assume the Agent may rely. The blue sky memorandum will relate accuracy of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the necessity attention of obtaining or confirming exemptionsSqui▇▇, qualifications or ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.P. that caused Squi▇▇, ▇▇nd▇▇▇ & Demp▇▇▇, ▇.L.P. to believe that the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement at the time it was declared effective by the Commission or the Prospectus became authorized for final useas of its date, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; misleading (ii) since the date the Prospectus became authorized for final use, it being understood that counsel need express no event has occurred which should have been set forth in an amendment comment or supplement opinion with respect to the Prospectus which has not been so set forthfinancial statements, including specifically, but without limitation, any material adverse change in the condition, schedules and other financial or otherwiseand statistical data included, or in the earningsstatistical or appraisal methodology employed, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration StatementStatement or Prospectus). The opinion shall be limited to matters governed by the laws of the United States or the State of Ohio. In rendering such opinion, such counsel may rely (A) as to matters involving the General Disclosure Package application of laws of any jurisdiction other than the United States or Ohio, 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 Company and the Prospectus, there has been no material adverse change in the condition, financial Bank and public officials; provided copies of any such opinion(s) or otherwise, or in the earnings, capital, properties or business certificates of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 public officials are true and correct delivered to you together with the same force opinion to be rendered hereunder by special counsel to the Company and effect as though expressly made at and the Bank. The opinion of such counsel for the Company shall state that it has no reason to believe that you are not justified in relying thereon.
(3) The favorable opinion, dated as of the Closing Date; (v) , of counsel for the Primary Parties have complied in all material respects Agent, with all agreements respect to such matters as the Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness directors of the Registration Statement has been initiated or, to Company and the knowledge of the Primary Parties, threatened by the Commission Bank delivered pursuant hereto or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversionas such counsel may reasonably request.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated as of the date hereof and addressed to the Agent: , (i) such letter confirming that Wolf & Company, P.C. Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent registered public accountants within the applicable rules 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 Company Accounting Oversight Board (United States) or the Bank is required by the Application or Item 10 of the Registration Statement, and stating in effect that in its Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP's opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion Company included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, 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 FRB Commission thereunder and any other applicable regulator and the 1933 Actgenerally accepted accounting principles; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a reading of the latest available consolidated unaudited interim financial statements of the Mid-Tier Company and the Bank prepared by the Mid-TierCompany and the Bank, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion Conversion, the establishment of the Foundation and the contribution of the Foundation Shares to the Foundation in all material respects in accordance with the Plan, the FRB NJDBI Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board, the NJDBI, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB Federal Reserve Board and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementNJDBI, or with the Agent’s consent at a later time and dateas applicable, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the Federal Reserve Board, the Commission, or the FRB, the Division NJDBI or any other Federal regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authoritycontribution, or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus, the proxy statement for the Special Meeting of Depositors (the “Proxy Statement”) and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ & LLP dated as of the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ LLP, P.C.the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve Board; (ii) stating in effect that, special counsel for on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Mid-Tier Holding Company and the Bank and committees thereof and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Mid-Tier Holding Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and substance ended not more than three business days prior to the date of the Prospectus as attached hereto compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company and other data prepared by the Mid-Tier Holding Company from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Exhibit C.the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇receive a letter from ▇▇▇▇▇ LLPLLP dated the Closing Date, special counsel for addressed to the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to Section 8(c11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At or prior to Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve Board, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBCommission, the Division NJDBI or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve Board or the Division NJDBI in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) 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,
(ii) stating in effect that the Appraisal complies in all material respects with applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesParties independently, considered or the Primary Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated thereinprior to the Closing Date, (i) a copy of the letter from the Federal Reserve Board approving the Holding Company Applications including the establishment of the Foundation; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in letter from the Prospectus, other than transactions referred to or contemplated thereinNJDBI approving the NJDBI Application; (iii) a copy of the order from the Commission declaring the Registration Statement effective, if available; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB evidencing the Bank’s memberships therein; (vi) a certified copy of each of the Primary Parties’ certificate of incorporation and bylaws, as applicable; (vii) a certified copy of the Foundations’ certificate of incorporation and bylaws; and (viii) any other documents that Agent shall reasonably request.
(l) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Parties shall will have received from the FRBFederal Reserve Board, the Division NJDBI, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating any Primary Party and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated the Closing Date, addressed representation and warranty by such Primary Party to the Agent, confirming Agent as to the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Datetherein.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Sunshine Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Sunshine Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Sunshine Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Form AC and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Sunshine Parties’ knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.L.L.P., special counsel for the Primary PartiesCompany and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLPSpidi & ▇▇▇▇▇, PC, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Taff, P.C. L.L.P. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Sunshine Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Sunshine Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Sunshine Parties independently, or of the Primary Sunshine Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Sunshine Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Sunshine Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Sunshine Parties, threatened by the FRB, the Division OTS or any other Federal or state authority; and (viii) to the best knowledge of the Primary Sunshine Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Sunshine Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Sunshine Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Sunshine Parties shall have received from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Sunshine Parties taken as a whole; (iviii) none of the Primary Sunshine Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Sunshine Parties, threatened against the any of the Primary Sunshine Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Sunshine Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Sunshine Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf Hacker, ▇▇▇▇▇▇▇ & Company, P.C.▇▇▇▇▇ PA, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf Hacker, ▇▇▇▇▇▇▇ & Company, P.C. ▇▇▇▇▇ PA is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier MHC as of December 31, 2011 2009 and 20122008, and for each of the years in the two-year period ended December 31, 2009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator OTS and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier MHC prepared by the Mid-TierMHC, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Sunshine Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, OTS and accounting principles generally accepted in the Division and the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierBank, other than normal deposit fluctuations for the Bank, Bank or in non-performing assets, or classified or special mention loans of the Bankaccrual loans; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierMHC, which are subject to the internal controls of the Mid-TierMHC, the accounting system and other data prepared by the Mid-TierMHC, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf Hacker, ▇▇▇▇▇▇▇ & Company, P.C. ▇▇▇▇▇ PA in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii) of subsection (hi) to be a date specified in the letter required by this subsection (hj) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇▇ Financial Advisors, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Sunshine Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB OTS approving the Form AC, the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared declaring the Registration Statement effective; (iviii) a certificate from the Massachusetts Maryland Department of Revenue Assessments & Taxation evidencing the good standing of the Company; (iv) certificates from the OTS evidencing the valid existence of the MHCBank, the MHC and Sunshine Financial; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston Atlanta evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xivii) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Sunshine Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Sunshine Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Sunshine Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Lake Shore Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Lake Shore Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Lake Shore Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Charter Conversion imposed upon them by the FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB and any other applicable regulator, and the Massachusetts Charter Conversion Application shall have been approved by the Division NYSDFS and the FDIC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Lake Shore Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion or the Charter Conversion shall have been issued or proceedings therefore initiated or, to the Primary Lake Shore Parties’ knowledge, threatened by the CommissionSEC, the FRB, the Division NYSDFS, the FDIC or any other regulatory authority, except in such states in which the registration of the Offering or the Shares or the Exchange Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Exchange Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Members’ Proxy Statement and the Stockholders’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.Luse Gorman, special counsel for the Primary Lake Shore Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff Kilpatrick Townsend & ▇▇▇▇▇▇▇ Stockton LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary Lake Shore Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ Luse Gorman delivered pursuant to Section 8(c)subsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. Luse Gorman relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. Luse Gorman shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares and the Exchange Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Lake Shore Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfiedLake Shore Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the ProspectusPackage, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Lake Shore Parties independently, or of the Primary Lake Shore Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Lake Shore Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date Date, including the conditions set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to Yount, Hyde & Barbour, P.C. and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (viixii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the SEC, the FRB, the Division OCC, the FDIC or any other Federal state or state federal authority; and (viiixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain review of the final action of the FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Division FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Lake Shore Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, Lake Shore Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Lake Shore Party since the latest dates as of which the financial condition of the Primary Lake Shore Parties is set forth in the Prospectus, other than transactions referred to or contemplated thereintherein or in the ordinary course of business; (iii) none of the Primary Lake Shore Parties shall have received from the FRB, the Division OCC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Lake Shore Parties taken as a whole; (iv) none of the Primary Lake Shore Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Lake Shore Parties, threatened against the any of the Primary Lake Shore Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares and the Exchange Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Lake Shore Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf Yount, Hyde & CompanyBarbour, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf Yount, Hyde & CompanyBarbour, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Company as of December 31, 2011 2024, and 2012for the year ended December 31, 2024, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)PCAOB) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Company prepared by the Mid-TierTier Company, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Lake Shore Parties and consultations with officers of the Mid-Tier Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in consolidated long-term or short-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the BankTier Company; or (C) ), except as set forth in said letter, there was any decrease in the consolidated total consolidated assets, total loans, the allowance for loan credit losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Company at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or consolidated total interest income or income, net interest income or income, net interest income after provision for loan credit losses, non-interest income or net income or increase in provision for loan losses or non-interest expense or the provision for credit losses of the Mid-TierTier Company, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierTier Company and the Bank, which are subject to the internal controls of the Mid-TierTier Company and the Bank, the accounting system and other data prepared by the Mid-TierTier Company and the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engreas
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion MHC-2 Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Malizia Spidi & Fisch, PC, special ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇he ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, ny in form and substance as attached hereto as Exhibit C.to the effect that:
(di) The Company and the MHC have been incorporated and are validly existing as corporations under the laws of the United States of America.
(ii) The Company and the MHC have corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing New Jersey-chartered savings bank in stock form and is authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank is authorized and validly issued, fully-paid and non-assessable and is owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-New York. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel's Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened.
(v) Immediately following the consummation of the Offering, the authorized, issued and outstanding common shares of capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of capital stock of the Company have been issued prior to the Closing Date (other than shares of common stock issued to the MHC); at the time of the Offering, the Common Shares subscribed for pursuant to 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 the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights (other than subscription rights as provided in the Plan) and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, the Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company.
(vi) The Company has full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the Offering have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company, enforceable against the Company, in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors rights generally or the rights of creditors of federally chartered holding companies or New Jersey chartered savings banks, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The MHC-2 Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(viii) Based upon the minutes of the proceedings of the Board of Directors, the Plan has been duly adopted by the required vote of the directors of the Company.
(ix) Subject to the satisfaction of the conditions to the OTS s approval of the Offering, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement and the issuance of the Shares, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the Closing Datetime the MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the Agent shall have received MHC-2 Application, including the favorable opinionProspectus contained therein, dated complied as to form in all material respects with the requirements of the Closing Date Reorganization Regulations except as waived or otherwise approved by the OTS (other than the financial statements, the notes thereto, and addressed other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the shares of common stock of the Company conform, in all material respects, to the Agent description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares complies with applicable laws.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or issuance of the Shares, or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) Neither the MHC, the Company nor the Bank are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) To such counsel's Actual Knowledge, neither the MHC, the Company nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
(xvii) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC-2 Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC-2 Application, the Registration Statement or the Prospectus. The description in the MHC-2 Application, 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.
(xviii) Except as waived or otherwise approved by the OTS, the Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Reorganization Regulations; to such counsel's Actual Knowledge, no order has been issued by the OTS, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, and no action for its benefitsuch purposes has been instituted or threatened by the OTS, the Commission, the FDIC, or any other state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of Silverthe final action of the OTS approving the Plan, ▇▇▇▇▇▇▇▇the MHC-2 Application or the Prospectus.
(xix) To such counsel's Actual Knowledge, Taff & ▇▇▇▇▇▇▇ LLPthe Company, special counsel the MHC and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the Agentconduct of their businesses as described in the Registration Statement, and all such licenses, permits and other governmental authorizations are in full force and effect, and the MHC, the Company and the Bank are in all material respects complying therewith.
(xx) To such counsel's Actual Knowledge, none of the MHC, the Company or the Bank is in violation of its Charter and Bylaws or 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 impact on the financial condition or results of operations of the MHC, the Company and the Bank on a consolidated basis; to such counsel's Actual 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, in form any material respect, 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 MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject; and substance such action will not result in any violation of the provisions of the Charter or Bylaws of the Company, the Bank or MHC, or result, in any material respect, in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xxi) Except as attached hereto waived or otherwise approved by the OTS, the Company s, Bank's and MHC's Charter and Bylaws each comply in all material respects with the laws of the United States of America.
(xxii) The information in the Prospectus under the captions "Regulation," "Taxation," (with respect to federal taxation only) "The Offering," "Restrictions on the Acquisition of MSB Financial Corp. and Millington Savings Bank" and "Description of Capital Stock of MSB Financial Corp.," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The description of the Offering process in the Prospectus under the caption "The 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 fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present, in all material respects, the information required to be shown. The information under the caption "The Offering-- Effects of the Stock Offering -- Material Federal and State Tax Consequences of the Offering" has been reviewed by such counsel and fairly describes the federal tax opinions rendered by them to the Company with respect to such matters. In addition, such counsel shall state that during the preparation of the MHC-2 Application, the Registration Statement and the Prospectus, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company, the MHC and the Bank, at which conferences the contents of the MHC-2 Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in the MHC-2 Application, the Registration Statement or the Prospectus and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as Exhibit D. Such opinion may rely upon to materiality as to factual matters on certificates of officers and directors of other factual representations by the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and Company), nothing has come to their attention that would lead them to believe that the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing DateMHC-2 Application, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final useRegistration Statement, the Prospectus did not contain Prospectus, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since . In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the date Company, the Prospectus became authorized for final useMHC and the Bank and certificates of public officials. Such counsel's opinion shall be limited to matters governed by federal laws. For purposes of such opinion, no event has occurred which should have been set forth proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in an amendment each case, a director or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business executive officer of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration StatementCompany, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings MHC or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Bank shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of such proceedings, order, stop order or action. In addition, such opinion may be limited to present statutes, regulations and judicial interpretations and to facts as they presently exist; in rendering such opinion, such counsel need assume no obligation to revise or supplement it should the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application present laws be changed by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension legislative or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engregulatory ac
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on Federal Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) regulatory authority and no order or other action suspending the Conversion, the Offerings or the authorization for use of the Prospectus has or the consummation of the Conversion shall have been issued and no issued, or proceedings for that purpose are pending therefor initiated or, to the knowledge of the Primary Parties, threatened by the FRBFederal Reserve, the Division Commission or the FDIC or any other Federal or state regulatory authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the . The Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(ic) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ dated as of the date hereof and addressed to the Agent: , such letter (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ is a firm of independent registered public accountants within the applicable rules meaning of the Public Company Accounting Oversight Board (United States) 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in its the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion Bank included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActCommission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a reading review (in accordance with Auditing Standard No. 4105) of the latest available consolidated unaudited interim financial statements of the Mid-Tier Bank prepared by the Mid-TierPrimary Parties, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each Directors of the Primary Parties and committees thereof and consultations with officers of the Mid-Tier Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any such unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable generally accepted accounting requirements of the FRB, the Division and the FDIC and GAAP principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest consolidated unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term borrowings (defined as securities sold under agreements to repurchase and any other form of debt of the Mid-Tier, other than normal deposit fluctuations for the Bankdeposits), or non-performing assets, or classified loans or special mention loans loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of the Bank; foreclosure), or (C) there was any decrease in the deposits, total consolidated assets, total loans, the allowance for loan losseslosses or equity, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after the provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engincome
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Sound Financial Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Sound Financial Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Sound Financial Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Form AC and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Sound Financial Parties’ knowledge, threatened by the Commission, the FRB, the Division OCC, the FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.L.L.P., special counsel for the Primary Sound Financial Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLPPrice P.C., special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. L.L.P. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Taff, P.C. 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Sound Financial Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Sound Financial Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Sound Financial Parties independently, or of the Primary Sound Financial Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Sound Financial Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Sound Financial Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Sound Financial Parties, threatened by the FRB, the Division FDIC, the OCC or any other Federal or state authority; and (viii) to the best knowledge of the Primary Sound Financial Parties, no person has sought to obtain review of the final action of the FRB, the Division FRB or any other applicable regulator approving the Conversion.
(g) None of the Primary Sound Financial Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Sound Financial Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Sound Financial Parties shall have received from the FRB, the Division OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Sound Financial Parties taken as a whole; (iviii) none of the Primary Sound Financial Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Sound Financial Parties, threatened against the any of the Primary Sound Financial Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Sound Financial Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Sound Financial Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇ ▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇ ▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 20122010, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Sound Financial Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division OCC and the FDIC and GAAP accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇ ▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Sound Financial Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB and any other applicable regulator approving the Form AC, the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue FRB evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence MHC and good standing of the Mid-Tier; (viiv) a certificate from the Division OCC evidencing the good standing of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston Seattle evidencing the Bank’s membership therein; (ixvii) a certificate from the Maryland Department of Assessments and & Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; Company and (xiviii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Sound Financial Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(p) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and s
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OTS, the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, OTS; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Association’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Association’s knowledge, threatened by the CommissionOTS, the FRB, the Division SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the AgentCompany, the MHC, the Mid-Tier Holding Company and the Association, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors a corporation under the laws of the Primary Parties delivered pursuant hereto State of Maryland; the MHC is validly existing as a federal mutual holding company under the laws of the United States of America; the Mid-Tier Holding Company has been duly incorporated and is validly existing as a federally-chartered holding company under the laws of the United States of America.
(ii) Each of the Company, the MHC and the Mid-Tier Holding Company has the corporate power and authority to own, lease and operate their respective properties and to conduct their business as described in the Registration Statement and the Prospectus.
(iii) The Association is a validly existing federally-chartered savings association in stock form duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. When issued in accordance with the Plan, all of the capital stock of the Association to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Association is a member in good standing of the FHLB-Boston. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel’s Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion - Effects of Conversion on Deposits, Borrowers and Members - Effect on Liquidation Rights” and “- Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel shall reasonably request and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued upon incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company. The issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Common Shares conform in all material respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Common Shares complies with the requirements of the Maryland Business Corporation Act. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, the MHC, the Association and the Mid-Tier Holding Company have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, the MHC, the Mid-Tier Holding Company and the Association; and this Agreement is a valid and binding obligation of the Company, the MHC, the Mid-Tier Holding Company and the Association, enforceable against the Company, the MHC, the Mid-Tier Holding Company and the Association in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of ▇▇▇▇ delivered pursuant to Section 8(cequitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(evii) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇The Conversion Application and Holding Company Application have been approved by OTS and the Prospectus and Members’ Proxy Statement have declared effective and cleared by the OTS, P.C. relating and no action has been taken or is pending, or to the Offeringsbest of such counsel’s Actual Knowledge, including Agent’s participation therein, shall have been furnished prior threatened to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent revoke any such authorization or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities lawapproval.
(fviii) Pursuant to the Conversion Regulations, the Plan has been approved by the MHC’s members and duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Association.
(ix) Subject to the satisfaction of the conditions to the OTS’ approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the OTC Bulletin Board (as to which no opinion need be rendered).
(x) The Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s Actual Knowledge, threatened by the SEC.
(xi) At the Closing Datetime the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the Agent shall receive a certificate Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Chief Executive Officer Conversion Regulations, the 1934 Act Regulations, federal law and all applicable rules and regulations promulgated thereunder (other than the Chief Financial Officer of each financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the compliance as to form of the Primary Parties in form Conversion Application, we have assumed that the statements made therein are correct and substance reasonably satisfactory to complete.
(xii) At the Agent’s Counseltime that the Registration Statement became effective, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus andRegistration Statement (as amended or supplemented, in their opinion, at if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the time the Prospectus became authorized for final usefinancial statements, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in light all material respects with the requirements of the circumstances under which they were made1933 Act and the 1933 Act Regulations, not misleading; and (ii) since the date the Prospectus became authorized for final use(other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no event has occurred which should have been set forth opinion need be rendered) complied as to form in an amendment or supplement to all material respects with the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business requirements of the Primary Parties 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law, it being understood, however, that in passing upon the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates compliance as to form of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, we have assumed that the statement made therein are correct and complete.
(xiii) To such counsel’s Actual Knowledge, there has been are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xiv) To such counsel’s Actual Knowledge, there are no material adverse change contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the conditionConversion Application, financial the Registration Statement or otherwise, the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the earningsConversion Application, capital, properties the Registration Statement or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising Prospectus. The description in the ordinary course Conversion Application, the Registration Statement and the Prospectus of business; such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(ivxv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied The Plan complies in all material respects with all agreements applicable laws, rules, regulations, decisions and have satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing DateConversion Regulations; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated orand, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Partiessuch counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBOTS approving the Plan, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementConversion Application, the General Disclosure Package and Prospectus, any material loss Holding Company Application 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvi) Prior to To such counsel’s Actual Knowledge, the Company, the MHC, the Mid-Tier Holding Company and at the Closing Date: Association have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC, the Mid-Tier Holding Company and the Association are in all material respects complying therewith.
(ixvii) in the reasonable opinion To such counsel’s Actual Knowledge, none of the AgentCompany the MHC, there shall the Mid-Tier Holding Company or the Association is in violation of its Certificate of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to such counsel’s Actual 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 been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary PartiesCompany, considered as one enterprisethe MHC, from that as the Mid-Tier Holding Company and the Association on a consolidated basis; the execution and delivery of this Agreement, the incurrence of the latest dates as of which such condition is obligations herein set forth and the consummation of the transactions contemplated herein do not (a), to such counsel’s Actual Knowledge, conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company or the Association pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier Holding Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Mid-Tier Holding Company or the Association are subject (other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition establishment of the Primary Parties is set forth liquidation account), (b) result in any violation of the Prospectusprovisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the MHC, other than transactions referred the Mid-Tier Holding Company or the Association or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or contemplated therein; the rules or regulations of the NASD and/or OTC Bulletin need be rendered) or order or court order, writ, injunction or decree.
(iiixviii) The Company’s Certificate of Incorporation and Bylaws comply in all material respects with the laws of the State of Maryland. The MHC’s, the Mid-Tier Holding Company’s and the Association’s respective Charter and Bylaws comply in all material respects with federal law.
(xix) To such counsel’s Actual Knowledge, none of the Primary Parties shall have received Company, the MHC, the Mid-Tier Holding Company or the Association is in violation of any directive from the FRB, OTS and the Division or the FDIC any direction (oral or written) SEC to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixx) Concurrently with The information in the execution Prospectus under the captions “Our Dividend Policy,” “Regulation and Supervision,” “Federal and State Taxation,” “The Conversion,” “Restrictions on Acquisition of this AgreementNEBS Bancshares and Enfield Federal” and “Description of NEBS Bancshares Capital Stock” 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 correct in all material respects. The description of the Conversion process in the Prospectus under the caption “The Conversion” 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 fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “The Conversion - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the opinions rendered by them to the Company, the Agent shall receive a letter from Wolf & CompanyMHC, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator Holding Company and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance Association with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting respect to such matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary ▇▇▇▇▇▇▇ Penn Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary ▇▇▇▇▇▇▇ Penn Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary ▇▇▇▇▇▇▇ Penn Parties shall have conducted the Conversion Offering in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the FRB OTS and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the ▇▇▇▇▇▇▇ Penn Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to the Primary ▇▇▇▇▇▇▇ Penn Parties’ knowledge, threatened by the Commission, the FRB, the Division OTS or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇▇ ▇, PC, special counsel for the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, Penn Parties in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Company has been duly incorporated and is validly existing under the Closing Date, the Agent shall have received the favorable opinion, dated as laws of the Closing Date United States, with corporate power and addressed authority to own its properties and to conduct its business as described in the Agent Registration Statement and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & Prospectus.
(ii) ▇▇▇▇▇▇▇ LLPPenn, special counsel for MHC has been duly organized and is validly existing as a corporation under the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors laws of the Primary Parties delivered pursuant hereto or United States with corporate power and authority to conduct its business and own its properties as such counsel shall reasonably request described in the Registration Statement and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c)Prospectus.
(eiii) A blue sky memorandum The Bank is a validly existing federally-charted savings association in stock form and is authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the capital stock of the Bank to be outstanding immediately following the completion of the Offering will be validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Pittsburgh. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel’s Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened.
(v) Immediately following the consummation of the Offering, the authorized, issued and outstanding common shares of capital stock of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of capital stock of the Company have been issued prior to the Closing Date (other than shares of common stock issued to the MHC); at the time of the Offering, the Common Shares subscribed for pursuant to 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 the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from ▇▇▇▇ ▇▇▇▇▇▇ ▇the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares and Foundation Shares is not subject to preemptive rights (other than subscription rights as provided in the Plan) and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel’s Actual Knowledge, the Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company.
(vi) The ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Penn Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan, P.C. relating including the contribution to the OfferingsFoundation of the Foundation Shares. The execution and delivery of this Agreement and the consummation of the Offering, including Agent’s participation thereinthe contribution to the Foundation of the Foundation Shares, shall have been furnished prior to duly and validly authorized by all necessary action on the mailing part of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Penn Parties; and this Agreement is a valid and binding obligation of the ▇▇▇▇▇▇▇ Penn Parties, P.C. shall state enforceable against the Agent ▇▇▇▇▇▇▇ Penn Parties, in accordance with its terms, except as the enforceability thereof may rely. The blue sky memorandum will relate be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors rights generally or the rights of creditors of federally-chartered holding companies or federally-chartered savings associations, as the case may be, (ii) general equitable principles, (iii) laws relating to the necessity safety and soundness of obtaining insured depository institutions, and (iv) applicable law or confirming exemptions, qualifications public policy with respect to the indemnification and/or contribution provisions contained herein and except that no opinion need be expressed as to the effect or the registration availability of the Shares under applicable state securities equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(fvii) At The MHC Notice and the Closing DateHolding Company Application have been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel’s Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(viii) Pursuant to the Reorganization Regulations, the Agent shall receive a Plan has been duly approved by the required vote of the Bank’s members, based upon the certificate of the Chief Executive Officer inspector of election, and the Chief Financial Officer of each Plan has been duly adopted by the required vote of the Primary Parties in form and substance reasonably satisfactory directors of the Company, based upon the minutes of the proceedings of the Board of Directors.
(ix) Subject to the Agent’s Counsel, dated as satisfaction of such Closing Date, the conditions to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light OTS’s approval of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final useOffering, no event has occurred which should have been set forth further approval, registration, authorization, consent or other order of any federal regulatory agency is required in an amendment or supplement to connection with the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in execution and delivery of this Agreement and the condition, financial or otherwise, or in the earnings, capital, properties or business issuance of the Primary Parties Shares, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the conditions set forth in this Section 8 have been satisfied; rules and regulations of the FINRA (iiias to which no opinion need be rendered).
(x) since the respective dates as of which information is given in the The Registration Statement, the General Disclosure Package and the Prospectus, there Statement has been no material adverse change in declared effective under the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations 1933 Act and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel’s Actual Knowledge, threatened by the Commission or any state authority; Commission.
(viixi) no order suspending At the Conversiontime the MHC Notice, including the Prospectus contained therein, was approved by the OTS, the Offerings or MHC Notice, including the use Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations except as waived or otherwise approved by the OTS (other than the financial statements, the notes thereto, and other financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus has been issued (other than the financial statements, the notes thereto, and other financial, statistical and appraisal data included therein, as to which no proceedings for that purpose are pending oropinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the shares of common stock of the Company conform, in all material respects, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth description thereof contained in the Registration Statement and the Prospectus, and since the respective dates as form of certificate used to evidence the Shares complies with applicable laws.
(xiv) To such counsel’s Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or issuance of the Shares, or (iii) which information is given are required to be disclosed in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred those disclosed therein.
(xv) Pursuant to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition of the Primary Parties is set forth in the ProspectusPlan and Offering, other than transactions referred to or contemplated therein; (iii) none of the Primary ▇▇▇▇▇▇▇ Penn Parties shall have received are required or will be required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) To such counsel’s Actual Knowledge, none of the ▇▇▇▇▇▇▇ Penn Parties is in violation of any directive from the FRB, the Division or the FDIC any direction (oral or written) OTS to make any material change in the method of conducting its respective business.
(xvii) To such counsel’s Actual 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 described or referred to therein or filed as exhibits thereto in the Applications, the Registration Statement or the Prospectus. The description in 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.
(xviii) Except as waived or otherwise approved by the OTS, the Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Reorganization Regulations; to such counsel’s Actual Knowledge, no order has been issued by the OTS, 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 threatened by the OTS, the Commission or any other state authority and, to such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Applications or the Prospectus.
(xix) To such counsel’s Actual Knowledge, (i) the ▇▇▇▇▇▇▇ Penn Parties have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their business with businesses as described in the Registration Statement, (ii) all such licenses, permits and other governmental authorizations are in full force and effect, and (iii) the ▇▇▇▇▇▇▇ Penn Parties are in all material respects complying therewith.
(xx) To such counsel’s Actual Knowledge, none of the ▇▇▇▇▇▇▇ Penn Parties is in violation of its charter and bylaws, as applicable, or 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 has is a party or by which it or its property may be bound, except for such defaults or violations which would not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect a material adverse impact on the financial condition, condition or results of operations or business of the Primary ▇▇▇▇▇▇▇ Penn Parties; to such counsel’s Actual Knowledge, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution and delivery of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as incurrence of the date hereof obligations herein set forth and addressed the consummation of the transactions contemplated herein will not, in any material respect, 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 any of the ▇▇▇▇▇▇▇ Penn Parties pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which any of the ▇▇▇▇▇▇▇ Penn 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 ▇▇▇▇▇▇▇ Penn Parties are subject; and such action will not result in any violation of the provisions of the charter or bylaws of any of the ▇▇▇▇▇▇▇ Penn Parties, or result, in any material respect, in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the Agent: (i) confirming that Wolf & Company, P.C. is a firm securities and blue sky laws of independent registered public accountants within various jurisdictions or the applicable rules or regulations of the Public Company Accounting Oversight Board FINRA need be rendered) or order or court order, writ, injunction or decree.
(United Statesxxi) and stating in effect that in its opinion Except as waived or otherwise approved by the consolidated financial statements and related notes OTS, each of the Mid-Tier as of December 31, 2011 ▇▇▇▇▇▇▇ Penn Parties’ charter and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, bylaws each comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations laws of the FRB and any other applicable regulator and the 1933 Act; United States of America.
(iixxii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included The information in the Prospectus are not in conformity with under the 1933 Act, applicable accounting requirements captions “Summary — The Offering” and “Description of Capital Stock,” insofar as they purport to constitute a summary of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that terms of the audited consolidated financial statements included capital stock of the Company, including the Common Stock, and under the captions “Risk Factors — Persons who purchase stock in the offering will own a minority of ▇▇▇▇▇▇▇ Penn Bancorp, Inc.’s common stock and will not be able to exercise voting control over most matters put to a vote of stockholders, including any proposal regarding the acquisition of ▇▇▇▇▇▇▇ Penn Bancorp, Inc.,” “— The contribution of shares to the charitable foundation will dilute your ownership interests and adversely affect net income in fiscal 2008,” “— We operate in a highly regulated environment and may be adversely affected by changes in law and regulations,” “Our Policy Regarding Dividends,” “Regulation,” “Taxation,” “Restrictions on Acquisition of ▇▇▇▇▇▇▇ Penn Bancorp, Inc.” and, insofar as it describes the Reorganization process, “The Reorganization 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. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “The Reorganization and Offering— Effects of the Stock Offering — Material Federal and State Tax Consequences of the Offering” has been reviewed by such counsel and fairly describes the federal tax opinions rendered by them to the ▇▇▇▇▇▇▇ Penn Parties with respect to such matters.
(xxiii) The Foundation has been duly incorporated and is validly existing as a non-stock corporation under the laws of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; or (B) during no approvals are required to contribute the period from Foundation Shares as described in the date of Prospectus; the latest consolidated financial statements included Foundation Shares to be issued to the Foundation in accordance with the Plan and as described in the Prospectus to a specified date not more than three business days prior will have been duly and validly authorized for issuance and, when issued and contributed by the Company pursuant to the date Plan, will be duly authorized and validly issued and fully paid and non-assessable. Upon issuance of the Prospectus, except Foundation Shares in accordance with the Plan and as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of Foundation will have full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior legal title to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating thatFoundation Shares, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to such claims as may be asserted against the internal controls of the MidFoundation by third-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engparty claimants. In add
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of ------------------------------------- the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties MHC, the Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties MHC, the Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties MHC, the Company and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the SEC, the Commissioner, the FRB or and any other applicable regulatorstate securities agency.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Reorganization Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division Commissioner not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ MHC's, the Company's or the Bank's knowledge, threatened by the CommissionSEC, the FRBCommissioner, the Division or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.Wood, special counsel for the Primary PartiesMHC, the Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing in good standing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances Commonwealth of Massachusetts; the MHC has been duly organized and is validly existing in good standing as a mutual holding company under which they were made, not misleading; the laws of the Commonwealth of Massachusetts.
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business Both of the Primary Parties MHC and the conditions set forth in this Section 8 Company have been satisfied; (iii) since the full corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus; and both of the MHC and Company are qualified to transact business as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC, Company and since the respective dates Bank, considered as of which information one enterprise.
(iii) The Bank is given a validly existing Massachusetts-chartered savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the capital stock of the Bank outstanding upon completion of the Reorganization will be duly authorized and will be validly issued, there shall not fully paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member in good standing of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Reorganization and the Stock Offering - Effects of the Reorganization - Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Reorganization, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption "Capitalization" and, except for the issuance of 100 Common Shares to the MHC as necessary to organize the Company, no Common Shares have been any Material Adverse Effect that is issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Agent’s reasonable judgment sufficiently material Plan and adverse as the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plans with funds borrowed from the Company to make it impracticable or inadvisable the extent payment therefor in cash has not been received by the Company; except to proceed with the Offerings or extent that subscription rights and priorities pursuant thereto exist pursuant to the delivery Plan, the issuance of the Shares on is not subject to preemptive rights and the terms and provisions of the Common Shares conform in all material respects to the manner contemplated description thereof contained in the Prospectus. The form of certificate used to evidence the Common Shares complies with applicable laws. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(hvi) Prior The MHC, the Bank and the Company have full corporate power and authority to enter into this Agreement and at to consummate the Closing Date: transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the MHC, the Company and the Bank; and this Agreement is a valid and binding obligation of the MHC, the Company and the Bank, enforceable against the MHC, the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of Massachusetts-chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Company's subsidiary (WSC) and the Bank's subsidiary (Elm Street) (collectively, the "Subsidiary") has been duly incorporated and is validly existing as a corporation under the laws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the reasonable opinion of Registration Statement and the Agent, there shall Prospectus and is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to so qualify would have been no a material adverse change in effect upon the financial condition, results of operations or business of the Primary PartiesCompany, the MHC, the Bank and its subsidiaries, considered as one enterprise, from that as ; the activities of the latest dates Subsidiary, as of which such condition is set forth described in the Registration Statement and the Prospectus, are permitted to subsidiaries of a bank holding company (in the case of WSC) and of a Massachusetts-chartered stock savings bank (in the case of Elm Street) by the general corporate law of Massachusetts and the rules, regulations, policies and practices of the Commissioner, the FDIC and all other federal banking or non-federal governmental agencies and regulatory authorities having jurisdiction thereover; all of the issued and outstanding capital stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company (in the case of WSC) and the Bank (in the case of Elm Street), to the best of such counsel's Actual Knowledge, free and clear of any material security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The Reorganization Application has been approved by the Commissioner and the Prospectus and Information Statement has been authorized for use by the Commissioner. The FRB has approved the Holding Company Application and the exchange by the MHC of all of the issued and outstanding capital stock of the Bank for a majority interest in the Company, and no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened to revoke any such authorization or approval.
(ix) Pursuant to the Reorganization Regulations, the Plan has been approved by the MHC's corporators and duly adopted by the required vote of the trustees of the MHC and the directors of the Company and Bank.
(x) Subject to the satisfaction of the conditions to the Commissioner's and the FRB's approval of the Reorganization, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Reorganization, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and the American Stock Exchange (as to which no opinion need by rendered).
(xi) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the SEC.
(xii) At the time the Reorganization Application, including the Prospectus and Information Statement contained therein, was approved by the Commissioner, the Reorganization Application, including the Prospectus and Information Statement contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations, federal and state law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xiii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Reorganization Regulations and federal law.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than transactions those disclosed therein.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Reorganization Application, the Registration Statement or contemplated thereinthe Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Reorganization Application, the Registration Statement or the Prospectus. The description in the Reorganization Application, 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.
(xvi) The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the Reorganization Regulations; no order has been issued by the SEC, the Commissioner, the FRB, or any other governmental 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 Actual Knowledge, threatened by the SEC, the Commissioner, the FRB, or any other governmental authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Commissioner or the FRB approving the Plan, the Reorganization Application, the Holding Company Application or the Prospectus.
(iixvii) there shall To such counsel's Actual Knowledge, the MHC, the Company and the Bank have been no obtained all material transaction entered into licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the MHC, the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, none of the MHC, the Company, the Bank or the Subsidiary is in violation of its Articles of Organization and Bylaws or its Charter and Bylaws, as appropriate or, to such counsel's Actual 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 any Primary Party since the latest dates as of which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Primary Parties is MHC, the Company and the Bank on a consolidated basis; the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (a), to such counsel's Actual Knowledge, conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject (other than transactions referred the establishment of the liquidation account), (b) result in any violation of the provisions of the Articles of Organization or Bylaws of the Company or the Charter or the Bylaws of the MHC or the Bank or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or contemplated therein; the rules or regulations of the NASD and the American Stock Exchange need be rendered) or order or court order, writ, injunction or decree.
(iiixix) The Company's Articles of Organization and Bylaws comply in all material respects with the laws of the Commonwealth of Massachusetts. The MHC's and the Bank's respective Charter and Bylaws and the MHC's proposed Amended and Restated Charter and Bylaws comply in all material respects with Massachusetts law.
(xx) To such counsel's Actual Knowledge, none of the Primary Parties shall have received MHC, the Company or the Bank is in violation of any directive from the FRBCommissioner, the Division FRB or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixxi) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engThe inform
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Westbury Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Westbury Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Westbury Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Westbury Parties’ knowledge, threatened by the Commission, the FRBOCC, the Division FRB or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesHolding Company and the Bank, in form and substance as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).C.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Westbury Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Westbury Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Westbury Parties independently, or of the Primary Westbury Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Westbury Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Westbury Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Westbury Parties, threatened by the FRB, the Division FRB or any other Federal or state authority; and (viii) to the knowledge of the Primary Westbury Parties, no person has sought to obtain review of the final action of the FRB, the Division FRB or any other applicable regulator approving the Conversion.
(g) None of the Primary Westbury Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Westbury Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Westbury Parties shall have received from the FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Westbury Parties taken as a whole; (iviii) none of the Primary Westbury Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Westbury Parties, threatened against the any of the Primary Westbury Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Westbury Parties taken as a whole; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Westbury Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. McGladrey LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier MHC as of September 30, 2012, December 31, 2011 and December 31, 2010, and for the fiscal years ended September 30, 2012, December 31, 2011 and December 31, 2010, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier MHC prepared by the Mid-TierMHC, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Westbury Parties and consultations with officers of the Mid-Tier Westbury Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC FRB and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierMHC, other than normal deposit fluctuations for the BankMHC, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at MHC and (C) during the period from the date of such letter as compared with amounts shown in the latest unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus; or (D) , except as has been described in the Prospectus, there was were any decrease decreases, as compared with the corresponding period in net income or the preceding fiscal year, in total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearMHC; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierWestbury Parties, which are subject to the internal controls of the Mid-TierWestbury Parties, the accounting system and other data prepared by the Mid-TierWestbury 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Westbury Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB and any other applicable regulator approving the Conversion Application and the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iviii) certificate from the Massachusetts Department certificates of Revenue appropriate government officials evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of , the Mid-TierTier Holding Company, the Bank, the Holding Company and the Foundation; (vi) a certificate from the Division evidencing the good standing of the Bank; (viiiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiiv) a certificate from the FHLB-Boston Chicago evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Westbury Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Westbury Parties and delivered to the Agent or to cou
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to Agents hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOTS, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the FRB, the Division Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent Agents shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of K▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP, in form and substance satisfactory to the Agents and counsel for the Agents as set forth in Exhibit E hereto. The opinion may be limited to matters governed by the laws of the United States, the State of Connecticut and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agents, as long as such other opinion indicates that the Agents 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 Agents 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 Agents are not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agents’ 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 K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, P.C., special counsel for K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agents, representatives of the independent public accountants for the Primary Parties and representatives of the Agents at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in form the Registration Statement and substance Prospectus, on the basis of the foregoing, nothing has come to the attention of K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP that caused K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement at the time it was declared effective by the Commission, that the Prospectus as attached hereto of its date and as Exhibit C.of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(d3) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Silver, L▇▇▇▇ Lord B▇▇▇▇▇▇▇▇, Taff ▇ & ▇L▇▇▇▇▇▇ LLP, special counsel for Stifel, with respect to such matters as the Agent, in form and substance as attached hereto as Exhibit D. Such Agents may reasonably require; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of K▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
(4) The letter of L▇▇▇▇ Lord Bissell & Liddell LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, L▇▇▇▇ Lord B▇▇▇▇▇▇ & L▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agents at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), L▇▇▇▇ Lord Bissell & Liddell LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of L▇▇▇▇ Lord B▇▇▇▇▇▇ & L▇▇▇▇▇▇ LLP that caused L▇▇▇▇ Lord Bissell & Liddell LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇LLP addressed to the Holding Company and the Agents relating to the offering, P.C. shall state the Agent may relyincluding Agents’ participation therein. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agents shall receive a letter from Wolf & Company, P.C., dated the date hereof and addressed to the Agents, such letter (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in Wolf & Company, P.C.’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties as of and for the interim period ended June 30, 2010, a reading of the minutes of the meetings of the Board of Directors, Audit Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the June 30, 2010 unaudited consolidated statements of financial condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses, non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agents 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 Agents shall receive a letter from Wolf & Company, P.C. dated the Closing Date, addressed to the Agents, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agents shall have been furnished with such documents and opinions as counsel for the Agents may reasonably require for the purpose of enabling them to advise the Agents 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 Agents shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessRegistration Statement; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied the best of their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the effectiveness of Offering, the Registration Statement has been initiated orExchange, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending have been initiated or, to the knowledge best of the Primary Partiestheir knowledge, threatened by the FRBOTS, the Division Commission, or any other Federal federal or state authority; and (viiivii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator OTS in approving the Plan or to enjoin the Conversion; and to the best of their knowledge, that the officers and directors of the Primary Parties set forth on Exhibit C hereto have abided by the restrictions on the exercise of options and sale of Common Stock contained in their “lock-up” agreements delivered under Section 10(k).
(g) None At the Closing Date, the Agents 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, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Agent’s Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agents’ reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the AgentAgents, there shall have been no material adverse change in the financial conditioncondition or in the earnings, results of operations capital, properties or business affairs of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any the Primary Party since Parties, independently or considered as one enterprise, from the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engfort
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB OTS and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the FRB, the Division Commission or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit E. The opinion may be limited to matters governed by the laws of the United States and the States of Connecticut and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States and the State of Maryland, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that, during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesStifel, in form and substance with respect to such matters as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such may reasonably require; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of ▇▇▇▇▇▇▇▇▇▇ delivered pursuant to Section 8(c)▇▇▇▇▇▇▇▇ LLP.
(e4) A blue sky memorandum from The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating in form and substance to the Offerings, including Agent’s participation therein, shall have been furnished prior to effect that during the mailing preparation of the Prospectus to Registration Statement and the Holding Company with a copy thereof addressed to Agent or upon which Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent may relyat which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(4)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP addressed to the Holding Company and the Agent relating to the offering, including Agent’s participation therein. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) As of the date hereof, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties included in the Prospectus, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans or non-performing assets, or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the December 31, 2010 statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses or non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from 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 ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties or business affairs of the Primary Parties independentlyParties, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied the best of their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the effectiveness of Offering, the Registration Statement has been initiated orExchange, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the FRBOTS, the Division Commission, or any other Federal federal or state authority; and (viiivii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator OTS in approving the Plan or to enjoin the Conversion, and (viii) that the officers and directors of the Primary Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(bb).
(g) None At the Closing Date, the Agent shall receive a letter from FinPro, Inc., dated as of the Closing Date, (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial conditioncondition or in the earnings, results of operations capital, properties or business affairs of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken independently or considered as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts the New Jersey Banking Law Act (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts New Jersey Application shall have been approved by the Division New Jersey Banking Department not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and datedate [, which consent shall not be unreasonably withheld;] and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division New Jersey Banking Department or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division New Jersey Banking Department or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division New Jersey Banking Department or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division New Jersey Banking Department or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (iviii) 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 outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.KPMG LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. KPMG LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division New Jersey Banking Department and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. KPMG LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts New Jersey Department of Revenue State evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department Delaware Secretary of Revenue State evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division New Jersey Banking Department evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston New York evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department Delaware Secretary of Assessments and Taxation State evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts New Jersey Application by the DivisionNew Jersey Banking Department; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares and the contribution of the Foundation Shares to the Foundation as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all procee
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on Federal Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the FRB, Commission or the Division FDIC or any other Federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.PC, special counsel for the Primary Parties, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A. In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel has not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇ US, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇ US, LLP, 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 and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Primary Parties and committees thereof and consultations with officers of the Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Primary Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Primary Parties from 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).
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇ US, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇ US, LLP; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of Regal Bancorp prepared by the Regal Parties, a reading of the minutes of the meetings of the Boards of Directors of the Regal Parties and committees thereof and consultations with officers of the Regal Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of Regal Bancorp for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (e), they have compared with the general accounting records of the Regal Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Regal Parties from 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).
(f) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum receive a letter from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇US, P.C. relating LLP dated the Closing Date, addressed to the OfferingsAgent, including Agent’s participation thereinconfirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (f) which for purposes of such letter shall have been furnished not be more than three business days prior to the mailing of Closing Date.
(g) At the Prospectus to Closing Date, the Holding Company with Agent shall receive a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇US, P.C. LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(e), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (g) which for purposes of such letter shall state not be more than three business days prior to the Closing Date.
(h) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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.
(fi) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of any Material Adverse Effect relating to the Primary Parties independently, or of the Primary Regal Parties considered otherwise than as one enterprise, whether set forth or not arising contemplated in the ordinary course of business; Registration Statement and the Prospectus;
(iv3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(v4) the Primary Parties and the Regal Parties have complied in all material respects with all agreements related to the Conversion and have the Merger and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Date; this Section 11;
(vi5) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBCommission, the Division FDIC or any other Federal federal or state authority; and and
(viii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve, the Division FDIC or any other applicable regulator the Department in approving the ConversionApplications or to enjoin the Conversion or the Merger.
(gj) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date,
(1) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(k) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hl) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties, considered Parties independently or taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: Parties will have received (i) a copy of the letter from the FRB Federal Reserve approving the Holding Company ApplicationApplication and a copy of the letter from the Federal Reserve approving the FRB Waiver Request; (ii) a copy of a the letter from the FRB Department approving the Conversion Application and a copy of the letter from the Department approving the New Jersey Merger Application; (iii) confirmation that a copy of the order from the Commission has declared declaring the Registration Statement effective, if available; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engcopy
Appears in 1 contract
Sources: Agency Agreement (SR Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB MHC Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB or any other applicable regulatorDepartment, the FDIC and the Federal Reserve Bank.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Reorganization Applications shall have been be approved by the FRB Department and the Massachusetts Application shall have been approved by the Division FDIC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's, the MHC's or the Bank's knowledge, threatened by the Commission, the FRBDepartment, the Division FDIC, the Federal Reserve Bank or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇Elias, Matz, Tiernan & Herrick L.L.P., special counsel for the Company, the ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for d the Primary PartiesBank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Delaware.
(ii) since the date the Prospectus became authorized for final useThe Company has corporate power and authority to own, no event has occurred which should have been set forth in an amendment or supplement lease and operate its properties and to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with conduct 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 described in the Registration Statement and the Prospectus.
(iii) The Bank has been organized and is a validly existing New York State chartered savings bank in capital stock form of organization, authorized to conduct its business and since the respective dates own its property as of which information is given described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Reorganization will be duly authorized and, there shall not have been upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any Material Adverse Effect that liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-New York. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Agent’s reasonable judgment sufficiently material Prospectus under the captions "Our Corporate Change and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery Stock Offering-Effects of the Shares on Corporate Change-Depositors Rights if We Liquidate," to the terms extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) The MHC has been duly organized and is validly existing as a New York State chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the manner contemplated in the Registration Statement and Prospectus.
(hvi) Prior Upon consummation of the Reorganization and the issuance of Foundation Shares to the Foundation immediately upon completion thereof subject to compliance with all conditions imposed upon the Foundation and at the Closing Date: (i) contribution thereof by the Department and the FDIC under the terms of the Departments approval order and the FDIC's no objection letter, in an amount as described in the reasonable opinion Prospectus, the authorized, issued and outstanding capital stock of the Agent, there shall have been no material adverse change in Company will be within the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is range set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall Prospectus under the caption "Capitalization," and no shares of Common Stock have been no material transaction entered into by any Primary Party since issued prior to the latest dates as of which Closing Date; at the financial condition time of the Primary Parties is Reorganization, the Shares subscribed for pursuant to the Offering and the Foundation Shares 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 the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares and the Foundation Shares is not subject to preemptive rights and the terms and provisions of the Shares and the Foundation Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares and the Foundation Shares, good title to the Shares and the Foundation Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, have been duly and validly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other than transactions referred similar laws now or hereafter in effect relating to or contemplated therein; affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions, the deposits of which are insured by the FDIC and their holding companies, (ii) general equitable principles, (iii) none of the Primary Parties shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed laws relating to the Agent) or which materially safety and adversely would affect the financial conditionsoundness of insured depository institutions and their holding companies, results of operations or business of the Primary Parties, taken as a whole; and (iv) none applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Primary Parties shall have been Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (v) no action, suit or proceeding, at law or proceeding in equity or before at law).
(viii) The MHC Application (including therewith, the establishment of the Foundation and the contribution of the Foundation Shares thereto) and the Notice have been approved by the Department and the FDIC, the Merger Application has been approved by the FDIC, and the Prospectus has been authorized for use by the Department. The Federal Reserve Bank has approved the Holding Company Application and issued its order of approval under the bank holding company provisions of the BHCA, the purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the Department and the FDIC, and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(ix) The Plan and the establishment and funding of the Foundation has been duly adopted by the required vote of the trustees of the Company, the MHC and the Bank, and based upon the certificate of the inspector of election, by the members of the Bank.
(x) Subject to the satisfaction of the conditions to the Department's and the FDIC's approval of the Reorganization and the Federal Reserve Bank's approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal or state commissionregulatory agency is required in connection with the execution and delivery of this Agreement, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge issuance of the Primary Parties, threatened against Shares and the any Foundation Shares and the consummation of the Primary Parties or affecting any of their properties wherein an unfavorable decisionReorganization, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken except as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the jurisdictions rules and regulations of the NASD and/or the Nasdaq Stock Market (as to which no opinion need be rendered). To such counsel's Actual Knowledge, the Agent shall have reasonably requested Reorganization has been consummated in all material respects in accordance with MHC Regulations, except that no opinion is rendered with respect to (a) the MHC Application, the Registration Statement or Prospectus, which are covered by other clauses of this opinion, (b) the satisfaction of the post-Reorganization conditions in the MHC Regulations or in the Department or FDIC approvals of the MHC Application and as agreed to by the Primary PartiesFederal Reserve Bank's approval of the Holding Company Application, (c) the securities or "blue sky" laws of various jurisdictions, and (d) the rules and regulations of the NASD and or the Nasdaq Stock Market.
(ixi) Concurrently with The Registration Statement is effective under the execution of this Agreement1933 Act, and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xii) At the time the MHC Application, including the Prospectus contained therein, and the Notice and Merger Application were approved by the Department and the FDIC, the Agent shall receive a letter from Wolf & CompanyMHC Application, P.C., dated as of including the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012Prospectus contained therein, and covered by their opinion included in the Prospectus, Notice and any other more recent unaudited financial statements included in the Prospectus, comply Merger Application complied as to form in all material respects with the requirements of the MHC Regulations, federal law and all applicable accounting rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xiii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and related published the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the MHC Regulations and applicable law.
(xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xv) There are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC, the Bank or the Foundation is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's or the Bank's business, are, considered in the aggregate, not material.
(xvi) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC Application, the Registration Statement or the Prospectus. The description in the MHC Application, 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.
(xvii) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have conducted the Reorganization, in all material respects, in accordance with all applicable requirements of the Plan and applicable law, except that no opinion is rendered with respect to (a) the MHC Application, the Registration Statement or Prospectus, which are covered by other clauses of this opinion, (b) the satisfaction of the post-Reorganization conditions in the MHC Regulations or in the Department and FDIC approvals of the MHC Application and the Federal Reserve Bank's approval of the Holding Company Application, (c) the securities or "blue sky" laws of various jurisdictions, and (d) the rules and regulations of the FRB and any other applicable regulator NASD and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm Nasdaq Stock Market. The Plan complies in all material respects with all applicable federal laws, rules, regulations, decisions and orders including, but not limited to, the applicable requirements of Title 12 MHC Regulations; no order has been issued by the Department, the Commission, the FDIC, the Federal Reserve Bank or any state authority to suspend the Offering or the use of the Code of Federal RegulationsProspectus, and (iii) further stating that its opinion no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the Department, the Commission, the FDIC, the Federal Reserve Bank or any state authority and no person has sought to obtain regulatory or judicial review of the aggregate pro forma market value final action of the Department, the FDIC or the Federal Reserve Bank, approving the Plan, the MHC Application, the Holding Company including Application or the Prospectus.
(xviii) To such counsel's Actual Knowledge, the Company, the MHC, and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations or the failure to be in compliance therewith would not have a material adverse effect on the business or operations of the Bank, the MHC and the Company taken as most recently updated, remains in effecta whole.
(mxix) At or prior to To such counsel's Actual Knowledge, neither the Closing DateCompany, the Agent shall receive: (i) MHC nor the Bank is in violation of its certificate of incorporation and bylaws or its Charter and bylaws, as appropriate or, to such counsel's Actual 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 copy party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the letter from Company, the FRB approving MHC and the Holding Company ApplicationBank on a consolidated basis; (ii) a copy to such counsel's Actual Knowledge, the execution and delivery of a letter from this Agreement, the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence occurrence of the MHC; (v) certificate from obligations herein set forth and the Massachusetts Department of Revenue evidencing the valid existence and good standing consummation of the Mid-Tier; (vi) transactions contemplated herein will not conflict with or constitute a certificate from breach of, or default under, or result in the Division evidencing the good standing creation or imposition of any lien, charge or encumbrance upon any property or assets of the Bank; (vii) Company, the MHC or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC or the Bank is a certificate from the FDIC evidencing the Bank’s insurance party or by which any of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent them may reasonably request.
(n) Subsequent be bound, or to the date hereof, there shall not have occurred which any of the following; (i) a suspension property or limitation in trading in securities generally on assets of the New York Stock Exchange (Company, the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges MHC or the Nasdaq Stock Market or by order Bank are subject (other than the establishment of the Commission liquidation account); and, such action will not result in any violation of the provisions of the certificate of incorporation or any other governmental authority; (ii) a general moratorium on bylaws of the operations Company or the Charter or bylaws of commercial banksthe MHC or the Bank or, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engto such counsel's A
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on Federal Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the FRB, Commission or the Division FDIC or any other Federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.PC, special counsel for the Primary Parties, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A. In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel has not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇ US, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇ US, LLP, 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 and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Primary Parties and committees thereof and consultations with officers of the Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Primary Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Primary Parties from 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).
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇ US, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇ US, LLP; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of Regal Bancorp prepared by the Regal Parties, a reading of the minutes of the meetings of the Boards of Directors of the Regal Parties and committees thereof and consultations with officers of the Regal Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of Regal Bancorp for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (e), they have compared with the general accounting records of the Regal Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Regal Parties from 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).
(f) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum receive a letter from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇US, P.C. relating LLP dated the Closing Date, addressed to the OfferingsAgent, including Agent’s participation thereinconfirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (f) which for purposes of such letter shall have been furnished not be more than three business days prior to the mailing of Closing Date.
(g) At the Prospectus to Closing Date, the Holding Company with Agent shall receive a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇US, P.C. LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(e), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (g) which for purposes of such letter shall state not be more than three business days prior to the Closing Date.
(h) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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.
(fi) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of any Material Adverse Effect relating to the Primary Parties independently, or of the Primary Regal Parties considered otherwise than as one enterprise, whether set forth or not arising contemplated in the ordinary course of business; Registration Statement and the Prospectus;
(iv3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(v4) the Primary Parties and the Regal Parties have complied in all material respects with all agreements related to the Conversion and have the Merger and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Date; this Section 11;
(vi5) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBCommission, the Division FDIC or any other Federal federal or state authority; and and
(viii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve, the Division FDIC or any other applicable regulator the Department in approving the ConversionApplications or to enjoin the Conversion or the Merger.
(gj) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date,
(1) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(k) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hl) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties, considered Parties independently or taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: Parties Parties will have received (i) a copy of the letter from the FRB Federal Reserve approving the Holding Company ApplicationApplication and a copy of the letter from the Federal Reserve approving the FRB Waiver Request; (ii) a copy of a the letter from the FRB Department approving the Conversion Application and a copy of the letter from the Department approving the New Jersey Merger Application; (iii) confirmation that a copy of the order from the Commission has declared declaring the Registration Statement effective, if available; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng)
Appears in 1 contract
Sources: Agency Agreement (SR Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations obligation of the Agent hereunder, as to consummate the Shares to be delivered at transactions contemplated by this Agreement on the Initial Closing Date, are subjectincluding the obligation to execute and deliver each of the Operative Agreements to which it is a party on the Initial Closing Date, is subject to (i) the extent not waived in writing by accuracy and correctness on the Agent, to Initial Closing Date of the condition that all representations and warranties of the Primary Parties herein areother parties hereto contained herein, at (ii) the accuracy and as correctness on the Initial Closing Date of the commencement representations and warranties of the Offerings other parties hereto contained in any other Operative Agreement or certificate delivered pursuant hereto or thereto, (iii) the performance by the other parties hereto of their respective agreements contained herein and at and as of in the other Operative Agreements, in each case to be performed by them on or prior to the Initial Closing Date, true and correct in all material respects(iv) the satisfaction, or waiver by the condition that the Primary Parties shall have performed Agent, of all of its obligations hereunder to be performed the following conditions on or before such dates, and prior to the following further conditionsInitial Closing Date:
(a) At Each of the Operative Agreements to be entered into on the Initial Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement Date shall have been declared effective duly authorized, executed and delivered by the Commissionparties thereto, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later other than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect, and no Default or Event of Default shall exist thereunder (both before and after giving effect on to the Closing Date.
(k) At transactions contemplated by the Closing DateOperative Agreements), and the Agent shall receive have received a letter dated fully executed copy of each of the Closing DateOperative Agreements (including the Notes). The Operative Agreements (or memoranda thereof), addressed any supplements thereto and any financing statements and fixture filings in connection therewith required under the Uniform Commercial Code shall have been filed or shall be promptly filed, if necessary, in such manner as to enable the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant Lessor's counsel to subsection (i) of this Section 8, the “specified date” render its opinion referred to in clause Section 6.2(f) hereof;
(ib) The satisfaction of subsection each of the conditions set forth in Sections 6.1(b), (c), (e), (f) and (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(bSections 6.2(d), (iie) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iiif) further stating that its hereof; and
(c) In the reasonable opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing DateAgent and its counsel, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application transactions contemplated by the Division; Operative Agreements do not and (xi) such other documents will not violate any material Legal Requirements and certificates as do not and will not subject the Agent may reasonably request.
(n) Subsequent or the Lenders to any materially adverse regulatory prohibitions or constraints, in each case enacted, imposed, adopted or proposed since the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary CF Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary CF Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary CF Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the CF Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the CF Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the CF Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, Conversion Applications, the Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, the financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the CF Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the CF Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the CF Parties, which are subject to the internal controls of the accounting system of the CF Parties and other data prepared by the CF Parties from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to subsection (d) of this Section 8(c)11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCF Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary CF Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by CBI, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve in approving the Division Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the CF Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary CF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesCF Parties independently, considered or the CF Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the letter from the Federal Reserve approving the Conversion Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Cincinnati evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the Primary CF Parties shall will have received from the FRBFederal Reserve, the Division OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the date hereofAgent and to counsel for the Agent. Any certificate signed by an officer of a CF Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such CF Party, there to the Agent as to the statements made therein.
(o) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall not have occurred any been furnished prior to the mailing of the following; (i) Prospectus, to CBI with a suspension copy thereof addressed to Agent or limitation in trading in securities generally on upon which ▇▇▇▇ ▇▇▇▇▇▇, P.C. shall state the New York Stock Exchange (Agent may rely. The blue sky memorandum will relate to the “NYSE”) necessity of obtaining or in the over-the-counter marketconfirming exemptions, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges qualifications or the Nasdaq Stock Market or by order registration of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or Shares under applicable state authorities; (iii) the engsecurities law.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorBanking Department and FDIC.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been approved by the FRB Superintendent and the Massachusetts Application shall have been approved not objected to by the Division FDIC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRBBanking Department, the Division FDIC, or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.received:
(d1) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇▇ & Taff, Taff & ▇▇▇▇▇▇▇ LLPL.L.P., special counsel for the AgentCompany and the Bank, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; state of Delaware.
(ii) since the date the Prospectus became authorized for final useThe Company has corporate power and authority to own, no event has occurred which should have been set forth in an amendment or supplement lease and operate its properties and to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with conduct 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 described in the Registration Statement and the Prospectus.
(iii) The Bank has been organized and is a validly existing New York chartered savings bank in capital stock form of organization, authorized to conduct its business and since the respective dates own its property as of which information is given described in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery . All of the Shares on outstanding capital stock of the terms Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully paid and in non-assessable and will be owned by the manner contemplated in the ProspectusCompany, free and clear of any liens, encumbrances, claims or other restrictions.
(hiv) Prior Each subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and at the Closing Date: (i) operate its properties and to conduct its business as described in the reasonable opinion of Prospectus and is not required to be qualified as a foreign corporation in any other jurisdiction, or the Agent, there shall failure to so qualify would not have been no a material adverse change in effect upon the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of Bank and the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, subsidiary taken as a whole; (iv) none the activities of the Primary Parties shall have subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New York chartered savings bank by the rules, regulations, resolutions and practices of the Banking Department and Banking Board; all of the issued and outstanding capital stock of each of the subsidiaries has been in default (nor shall an event have occurred whichduly authorized and validly issued, with notice or lapse of time or both, would constitute a default) under any provision is fully paid and non-assessable and is owned by the Company free and clear of any agreement security, interest, mortgage, pledge, lien, encumbrance, claim or instrument relating to any outstanding indebtedness; equity.
(v) The Bank is a member in good standing of the FHLB-New York. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no action, suit proceedings for the termination or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be revocation of such insurance are pending or, to such counsel's Actual knowledge, threatened; the knowledge description of the Primary Partiesliquidation account as set forth in the Prospectus under the captions "The Conversion - Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially has been reviewed by such counsel and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and is accurately described in all material respects.
(vi) Upon consummation of the Conversion, 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 issued prior to the Closing Date. The issuance and sale of the shares and the contribution of the Foundation Shares to the 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 calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable. The issuance of the Shares shall have been qualified or registered for offering is not subject to preemptive rights and sale or exempted therefrom under the securities or blue sky laws terms and provisions of the jurisdictions as Shares and the Agent shall have reasonably requested Foundation Shares conform in all material respects to the description thereof contained in the Registration Statement and as agreed to by Prospectus. To such counsel's actual knowledge, upon the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as issuance of the date hereof Shares and addressed the Foundation Shares, good title to the Agent: (i) confirming that Wolf & CompanyShares and the Foundation Shares will be transferred from the Company to the purchasers thereof against payment therefor, P.C. is a firm of independent registered public accountants within subject to such claims as may be asserted against the applicable rules of purchasers thereof by third-party claimants. The certificates representing the Public Company Accounting Oversight Board (United States) Shares and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form Foundation Shares will conform in all material respects with the requirements of all applicable accounting requirements laws and related published rules regulations. The issuance and regulations sale of the FRB capital stock of the Bank to the Company has been duly authorized by all necessary action of the Bank and any other applicable regulator approved by the Superintendent and the 1933 Act; FDIC (ii) stating subject to the satisfaction of various conditions imposed in effect thatconnection with the Superintendent's approval of, on and the basis of certain agreed upon procedures (but not an audit FDIC's non-objection to, the Conversion Application), and such capital stock, when issued in accordance with standards the terms of the Public Company Accounting Oversight Board (United States)) consisting Plan, will be fully paid, nonassessable and free of a reading of preemptive or similar rights and will conform in all material respects to the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included description thereof contained in the Prospectus; or (B) during the period from the date . All such capital stock of the latest consolidated financial statements included in Bank will be owned beneficially and of record by the Prospectus to a specified date not more than three business days prior to Company free and clear of all claims, encumbrances, security interests and liens against the date of the Prospectus, except Bank whatsoever. Except as has been described disclosed in the Prospectus, there was is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue any increase in long-term debt share of capital stock of the Mid-Tier, other than normal deposit fluctuations for Company or the BankBank or any security convertible into, or non-performing assetsexercisable or exchangeable, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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)capital stock.
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations ------------------------------------- of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on FDIC and the date of this AgreementCommissioner, or with as applicable, the Agent’s consent at a later time and dateHolding Company Application shall have been approved by the FRB, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings therefore therefor initiated or threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ ' best knowledge, or proceedings therefor initiated or threatened by the CommissionFDIC, the Commissioner, the FRB, the Division Commission, or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special and/or local counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed acceptable to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers satisfactory to the Agent and directors 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 Primary Parties delivered pursuant hereto or Commonwealth of Massachusetts, 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 Massachusetts and in each other jurisdiction in which the conduct of its business requires such counsel shall reasonably request qualification and except where the opinion of ▇▇▇▇ delivered pursuant failure to Section 8(c)qualify would have a Material Adverse Effect.
(eii) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇On the date hereof, P.C. relating to the OfferingsBank is a validly existing Massachusetts-chartered stock savings bank, including Agent’s participation therein, shall have been furnished prior to the mailing and upon consummation of the Conversion, the Bank will continue to be a validly existing Massachusetts-chartered stock savings bank, 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 federal and Massachusetts law and the rules, regulations and practices of the FDIC and the Commissioner; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted for bank holding companies and for subsidiaries of a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇bank holding company and a Massachusetts- chartered stock holding company under applicable federal and state law. To the best of such counsel's knowledge, P.C. shall state each of the Agent may rely. The blue sky memorandum will relate 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 authorization are in full force and effect, and to the necessity best of obtaining such counsel's knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) 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 confirming exemptionsrevocation of the federal deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, qualifications (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 registration Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under applicable state securities lawthe charter, articles of incorporation or bylaws of the Holding Company, 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.
(fvi) At The execution and delivery of this Agreement and the Closing Date, the Agent shall receive a certificate consummation of the Chief Executive Officer transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and the Chief Financial Officer this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties Parties, enforceable in form accordance with its terms, except as rights to indemnity and substance reasonably satisfactory contribution thereunder may be limited under applicable law, subject to the Agent’s Counselqualification that (i) enforcement thereof may be limited by bankruptcy, dated as insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings bank or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such Closing Date, enforceability is considered in a proceeding in equity or at law) and to the effect that: of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(ivii) they have carefully examined The Plan has been duly adopted by the Prospectus andBoard of Trustees of the Bank and by the corporators of the Bank, in their opinion, at the time manner required by the Prospectus became authorized for final useConversion Regulations and the Bank's amended and restated charter and bylaws.
(viii) The Massachusetts Application has been approved by the Commissioner, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make FRB has approved the statements thereinHolding Company Application, in light and the Bank has received the non-objection of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement FDIC to the Prospectus which has not been so set forthConversion, including specifically, but without limitation, and subject to the satisfaction of any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the 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 Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration StatementAgreement, the General Disclosure Package offer, sale and issuance of the Shares and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business consummation of the Primary Parties independentlyConversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the Primary Parties considered as one enterprise1933 Act and to such counsel's knowledge, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated orissued, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, have been instituted or threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the ConversionCommission.
(gx) None The terms and provisions of the Primary Parties shall have sustained, since shares of Common Stock conform to the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth description thereof contained in the Registration Statement and the Prospectus, and since the respective dates as forms of which information is given certificates proposed to be used to evidence the shares of Common Stock are in the Registration Statement due and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectusproper form.
(hxi) Prior to At the time the Conversion Application and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRBMassachusetts Application was approved, the Division Conversion Application (as amended or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not supplemented), complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the requirements of the Conversion Regulations and all applicable accounting requirements and related published laws, rules and regulations and decisions and orders of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the ProspectusCommissioner, except as modified or waived in writing by the FDIC and/or the Commissioner (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 been described in the Prospectus, there was any increase in long-term debt sought to obtain regulatory or judicial review of the Mid-Tierfinal action of the FDIC, other than normal deposit fluctuations for the BankCommissioner, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in FRB approving the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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)Applications.
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(kxii) At the Closing Datetime that the Registration Statement became effective the Registration Statement, including the Agent shall receive a letter dated Prospectus contained therein (as amended or supplemented) (other than the Closing Datefinancial statements, addressed notes to financial statements, financial tables or other financial and statistical data included therein and the Agent, confirming appraisal valuation and the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant business plan as to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(bcounsel need express no opinion), (ii) stating in effect that the Appraisal prepared by such firm complies complied as to form in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, 1933 Act and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectrules and regulations promulgated thereunder.
(mxiii) At To such counsel's knowledge, there are no legal or prior to the Closing Dategovernmental proceedings pending, the Agent shall receive: or threatened (i) a copy asserting the invalidity of the letter from the FRB approving the Holding Company Application; this Agreement or (ii) a copy of a letter from the FRB approving seeking to prevent the Conversion Application; (iii) confirmation that or the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence offer, sale or issuance of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably requestShares.
(nxiv) Subsequent The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Port Financial Corp. and Cambridgeport Bank," "Description of Capital Stock of Port Financial Corp.," and "The Conversion and the Offering," to the date hereofextent that such information constitutes matters of law, there shall not have occurred any summaries of the following; (i) a suspension legal matters, documents or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter marketproceedings, or quotations halted generally on legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the Nasdaq Stock Marketfinancial statements, or minimum or maximum prices for trading have been fixednotes to financial statements, or maximum ranges for prices for securities have been required by either of such exchanges or financial tables and other financial and statistical data included therein and the Nasdaq Stock Market or by order of appraisal valuation and the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engbusiness plan as to which counsel need express no opinion).
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Meetinghouse Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Meetinghouse Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Meetinghouse Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the Commissioner, the FRB and any other applicable regulatorthe FDIC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Commissioner or any other applicable regulatorthe FDIC.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Applications and Holding Company Application shall have been approved by the FRB Commissioner, the FDIC and the Massachusetts Application shall have been approved by the Division FRB, as applicable, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Meetinghouse Parties’ knowledge, threatened by the Commission, the FRBCommissioner, the Division FDIC or any other Federal or state authoritythe FRB.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.▇▇ LLP, special counsel for the Primary PartiesHolding Company and the Bank, in form and substance as attached hereto as Exhibit C.A.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. ▇▇ LLP relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. ▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Meetinghouse Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Meetinghouse Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Meetinghouse Parties independently, or of the Primary Meetinghouse Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Meetinghouse Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Meetinghouse Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Meetinghouse Parties, threatened by the FRBCommissioner, the Division FDIC, the FRB or any other Federal or state authority; and (viii) to the best knowledge of the Primary Meetinghouse Parties, no person has sought to obtain review of the final action of the FRB, Commissioner or the Division or any other applicable regulator approving the ConversionFDIC.
(gf) None of the Primary Meetinghouse Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hg) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Meetinghouse Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Meetinghouse Parties shall have received from the FRBCommissioner, the Division FDIC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Meetinghouse Parties taken as a whole; (iviii) none of the Primary Meetinghouse Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Meetinghouse Parties, threatened against the any of the Primary Meetinghouse Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Meetinghouse Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Meetinghouse Parties.
(ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31September 30, 2011 and 20122010 and for the years then ended, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the Commissioner, the FDIC and the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Meetinghouse Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommissioner, the Division and the FDIC and GAAP the FRB and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierBank, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(ki) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇▇▇▇▇ in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lj) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Meetinghouse Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the Commissioner approving the Massachusetts Conversion Application and authorizing the use of the Prospectus; (ii) a copy of the letter from the FDIC not objecting to the FDIC Conversion Application; (iii) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iiiiv) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division Commissioner evidencing the good standing of the Bank; (viivi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ixviii) a certificate from the Maryland Department of Assessments and & Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; Company and (xiix) such other documents and certificates as the Agent may reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Meetinghouse Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Meetinghouse Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Meetinghouse Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's, the MHC's or the Bank's knowledge, threatened by the Commission, the FRB, the Division OTS or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesCompany, the MHC and the Bank, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Company is duly authorized and validly issued, fully paid and non-assessable.
(ii) The Bank has been duly organized and is a validly existing federal savings association in capital stock form of organization, duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus. All of the outstanding capital stock of the Bank is duly authorized and validly issued, fully paid and non-assessable and owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) The MHC has been duly organized and is a validly existing federal mutual holding company duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus.
(iv) The Bank is a member of the FHLB-Dallas. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion and Reorganization-Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(v) Upon consummation of the Conversion, 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 except for shares issued as described in the Prospectus or pursuant to employee stock benefit plans described in the Prospectus in the section titled "Management of the Bank -- Executive Compensation," no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Agent shall Shares subscribed for pursuant to the Offerings will have received been duly and validly authorized for issuance, and when issued and delivered by the favorable opinion, dated as Company pursuant to the Plan against payment of the Closing Date consideration calculated as set forth in the Plan and addressed the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the Agent and for its benefitdescription thereof contained in the Prospectus. To such counsel's Actual Knowledge, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for upon the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors issuance of the Primary Parties delivered pursuant hereto or Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as such counsel shall reasonably request may be asserted against the purchasers thereof by third-party claimants.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company, the MHC, and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including, without limitation, the provisions of Section 23A and 23B of the Federal Reserve Act, and except that no opinion need to be expressed as to the effect or availability of ▇▇▇▇ delivered pursuant to Section 8(cequitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(evii) A The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank and, based upon the certificate of the inspector of election, by the members of the MHC, the stockholders of the Company and the stockholders of the Bank.
(ix) Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any federal or Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky memorandum laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the Nasdaq National Market (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, the HOLA and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC or the Bank is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's or the Bank's business, are, considered in the aggregate, not material.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, 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.
(xvi) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have conducted the Conversion, in all material respects, in accordance with all applicable requirements of the Plan and the HOLA and regulations thereunder, and the Plan complies in all material respects with all applicable Delaware and federal laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations (except where a written waiver has been received); no order has been issued by the OTS, the Commission or any state authority to suspend the Offerings or the use of the Prospectus, and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the OTS or the Commission or any state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application or the Prospectus.
(xvii) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have obtained all material federal and Delaware licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations or the failure to be in compliance therewith would not have a material adverse affect on the business or operations of the Bank, the MHC and the Company, taken as a whole.
(xviii) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of its articles of incorporation, bylaws, or charter, as applicable, or, to such counsel's Actual 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 impact on the financial condition or results of operations of the Company, the MHC nor the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the occurrence 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 Company, the MHC or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC or the Bank is subject (other than the establishment of a liquidation account), and such action will not result in any violation of the provisions of the articles of incorporation, bylaws or charter, as applicable, of the Company, the MHC or the Bank, or any applicable federal or Delaware law, act, regulation (except that no opinion need be rendered with respect to the securities or blue sky laws of various jurisdictions or the rules and regulations of the NASD and/or the Nasdaq National Market) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the General Corporation Law ("GCL") of the State of Delaware. The Bank's and the MHC's charter and bylaws comply in all material respects with the HOLA and the rules and regulations of the OTS.
(xx) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
(xxi) The information in the Prospectus under the captions "Regulation," "The Conversion," "Restrictions on Acquisition of the Company" and "Description of Capital Stock of Pocahontas Bancorp," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Conversion process under the caption "The Conversion" in the Prospectus has been reviewed by such counsel and is in all material respects correct. The discussion of statutes or regulations described or referred to in the Prospectus are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion-Tax Aspects" has been reviewed by such counsel and constitutes a correct summary of the opinions rendered by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating and Deloitte to the OfferingsCompany, including Agent’s participation thereinthe MHC and the Bank with respect to such matters. In giving such opinion, shall have been furnished prior such counsel may rely as to the mailing all matters of fact on certificates of officers or directors of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing DateCompany, the Agent shall receive a certificate of the Chief Executive Officer MHC and the Chief Financial Officer Bank and certificates of each of the Primary Parties in form public officials. Such counsel's opinion shall be limited to matters governed by federal laws and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending State of Delaware General Corporation Law. With respect to matters involving the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engapplication of
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary FS Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary FS Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary FS Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the FS Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the FS Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date Date, of ▇▇▇▇ ▇▇▇▇▇▇, PC, in form and addressed substance satisfactory to the Agent and counsel for its benefitthe Agent, to the effect as attached hereto as Exhibit A; and
(2) The letter, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as set forth in the last paragraph of Exhibit A.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for LLC dated the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date date hereof and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of letter (i) confirming that ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to LLC is a firm of independent registered public accountants within the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing meaning of the Prospectus to 1933 Act and the Holding Company with a copy thereof addressed to Agent or upon which 1933 Act Regulations, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLC, the consolidated financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Audit Standard No. 4105) of the latest available unaudited consolidated interim financial statements prepared by the Company, a reading of the minutes of the meetings of the Board of Directors of the Company and the Bank and committees thereof and consultations with officers of the FS Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Company and its subsidiaries, which are subject to the internal controls of the accounting system of the Company and its subsidiaries and other data prepared by the Company and its subsidiaries from their 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).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇ LLC dated the Closing Date, P.C. shall state the Agent may rely. The blue sky memorandum will relate addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of obtaining or confirming exemptionsthis Section 11, qualifications or the registration of “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Shares under applicable state securities lawClosing Date.
(f) At the Closing Date, counsel to the Agent shall have been furnished with such documents 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 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.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselFS Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary FS Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by FSBI, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve in approving the Division Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇ Financial Advisors, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the FS Parties and is experienced and expert in the area of corporate appraisals;
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations; and
(iii) further stating that its opinion of the aggregate pro forma market value of the FSBI expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary FS Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the consolidated financial condition, results of operations condition or in the consolidated earnings or business of the Primary PartiesCompany and the Bank, considered taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letter from the FRB Federal Reserve approving the Holding Company Conversion Application; , (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared declaring the Registration Statement effective; , (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; , (ixv) a certificate from the Maryland Department of Assessments and Taxation FDIC evidencing the good standing Bank’s insurance of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; accounts, and (xivi) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; authority other than temporary trading halts;
(ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engfinancial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the FS Parties will have received from the Federal Reserve, the OCC, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent only if such it is not considered confidential supervisory information as defined in 12 C.F.R. §309.5(g)(8)).
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a FS Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such FS Party, to the Agent as to the statements made therein.
(o) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to FSBI with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Reorganization are subject, to the extent not waived in writing by the Agent, 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 Offerings and at and as of the Closing DateTime, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to any of the Primary Parties’ best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ best knowledge, threatened by the Department, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body. The Applications shall have been approved by the Department and all terms, conditions, requirements and provisions thereof imposed by the Department shall have been satisfied.
(cb) At the Closing DateTime, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent, to the effect that:
(di) The Holding Company 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) LMIC is a duly incorporated and validly subsisting Pennsylvania insurance company in mutual form and, following the Conversion, will be a duly incorporated and validly existing Pennsylvania insurance company 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 issuance and sale of the Common Stock of LMIC to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and LMIC 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. To the best of such counsel’s knowledge, (x) each of the Holding Company and LMIC has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, (y) all such licenses, permits and other governmental authorization are in full force and effect, and (z) the Holding Company and LMIC are complying therewith in all material respects.
(iii) LMIC has all requisite 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 the Holding Company and LMIC have obtained all licenses, permits and other governmental authorizations currently required for the conduct of their respective businesses, except where the failure to obtain any such license, permit or authorization would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Holding Company and LMIC, considered as one enterprise.
(iv) The authorized capital stock of the Holding Company consists of 25,000,000 shares, divided into two classes of common stock having a par value of $0.01 per share (“Common Stock”), consisting of 15,000,000 shares of Class A Common Stock and 5,000,000 shares of Class B Common Stock, and 5,000,000 shares of preferred stock, having such par value, if any, as the board of directors shall fix and determine; no shares of Common Stock or preferred stock will be issued and outstanding prior to the Closing Time. Immediately upon consummation of the Reorganization, (a) the issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization”; (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the shares of Common Stock 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.
(v) 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 MTS; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties and MTS (in the case of MTS, limited to its obligations set forth in Section 19 hereof), 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.
(vi) The Plan has been duly adopted by the Board of Directors of LMIC in the manner required by the Conversion Regulations and LMIC’s charter and bylaws.
(vii) Upon consummation of the Offerings, to the knowledge of such counsel, 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, or any other governmental agency, if any, were complied with by LMIC in all material respects or appropriate waivers were obtained and all notice and waiting periods were satisfied, waived or elapsed.
(viii) The Applications have been approved by the Department 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.
(ix) The purchase by the Holding Company of all of the issued and outstanding Common Stock of LMIC has been authorized by the Department and no action has been taken, or to such counsel’s knowledge, is pending or threatened, to revoke any such authorization or approval.
(x) The Registration Statement is 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 material tax consequences of the Reorganization are set forth in the Prospectus under the caption “CONVERSION — Tax Effects Generally” and “- Tax Consequences of Subscription Rights” and such tax information has been reviewed by such counsel and fairly describes the opinion rendered by such counsel to the Primary Parties with respect to such matters.
(xii) The terms and provisions of the shares of Common Stock of the Holding Company 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 of the Holding Company comply with all applicable laws and regulations, including, without limitation, as to form.
(xiii) At the Closing Date, time the Agent shall have received the favorable opinion, dated Applications were approved and as of the Closing Date Time, the Applications (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and addressed Acquisition Regulations, as applicable, and all applicable laws, rules and regulations and decisions and orders of the Department, except as modified or waived in writing by the Department (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, approving such Applications.
(xiv) At the time that the Registration Statement became effective and as of the Closing Time, 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.
(xv) 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.
(xvi) The information in the Prospectus under the captions “BUSINESS —” Regulation,” “THE CONVERSION — Tax Effects Generally” and “- Tax Consequences of Subscription Rights,” “RESTRICTIONS ON ACQUISITION OF THE HOLDING COMPANY,” “DESCRIPTION OF CAPITAL STOCK” and “THE CONVERSION,” to the Agent extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and for is accurate in all material respects.
(xvii) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xviii) LMIC has duly adopted a Pennsylvania stock charter and bylaws effective upon consummation of the Reorganization and, to such counsel’s knowledge, none of the Primary Parties is in violation of its benefitcharter 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 Silverthe Primary Parties considered as one enterprise, ▇▇▇▇▇▇▇▇or on the earnings, Taff & 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 and MTS, 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 (or other constituent documents) of any of the Primary Parties or MTS or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree.
(xix) With respect to the Offering, MTS and its affiliates, including without limitation ▇▇▇▇▇▇▇ LLPFinancial Group, special counsel for the AgentLLC, in form a FINRA member, and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating are in compliance with all applicable FINRA rules, have made all necessary FINRA filings and received all necessary approvals or, alternatively, that no such rules are applicable and no such filings or approvals are required.
(xx) MTS is a limited liability company duly organized and validly subsisting under the laws of the Commonwealth of Pennsylvania, with full power and authority to enter into this Agreement and the other agreements to which it is a party related to the OfferingsConversion and the Offering. In rendering such opinion, including Agent’s participation thereinsuch counsel may rely as to matters of fact, shall have been furnished prior to the mailing extent such counsel deems proper, on certificates of responsible officers of the Prospectus Primary Parties and MTS (to the Holding Company with a copy thereof addressed extent relevant) and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇together with the opinion to be rendered hereunder by 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 ▇▇▇▇▇▇▇ & ▇▇▇ addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity ▇▇▇ & ▇▇▇ participated in conferences with certain officers of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each other representatives of the Primary Parties in form and substance reasonably satisfactory Parties, MTS, counsel to the Agent’s Counsel, dated as representatives of such Closing Datethe 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 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the effect that: (i) they have carefully examined attention of ▇▇▇▇▇▇▇ & ▇▇▇ that caused ▇▇▇▇▇▇▇ & ▇▇▇ to believe that the Registration Statement and the Prospectus and, in their opinion, at the time it was declared effective by the Prospectus became authorized for final useCommission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; misleading (ii) since the date the Prospectus became authorized for final use, it being understood that counsel need express no event has occurred which should have been set forth in an amendment comment or supplement opinion with respect to the Prospectus which has not been so set forthfinancial statements, including specificallyschedules and other financial and statistical data included, but without limitationor statistical or appraisal methodology employed, any material adverse change in the conditionRegistration Statement, financial Prospectus or otherwiseGeneral Disclosure Package).
(3) The favorable opinion, dated as of the Closing Time, of 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 in as such counsel may reasonably request and upon the earnings, capital, properties opinion of counsel to the Primary Parties and MTS or business of other counsel acceptable to the Agent.
(4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ & ▇▇▇ addressed to the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since Agent relating to the respective dates as Offerings, including the Agent’s participation therein. The Blue Sky Memorandum will address the necessity of which information is given in obtaining or confirming exemptions, qualifications or the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business registration of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any Common Stock under applicable state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversionsecurities law.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated as of the date hereof and addressed to the Agent: , such letter (i) confirming that Wolf & Company▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, P.C. is a firm of an independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engProfessional Ethics
Appears in 1 contract
Sources: Agency Agreement (Lmi Holdings Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion Offering in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), SLHC Act and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the FRB or any other applicable regulatorAgencies.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been be approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRB, the Division OTS or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.received: 18NEXT PAGE
(d1) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to L.L.P., special counsel for the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Bank, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; United States.
(ii) since The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the date Registration Statement and the Prospectus became Prospectus.
(iii) Upon the Conversion, the Bank will be organized and validly existing as a Texas savings bank in capital stock form of organization, authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock will be duly authorized, and validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Dallas. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for final usethe termination or revocation of such insurance are pending or, no event to such counsel's Actual Knowledge, threatened.
(v) The Company has occurred which should have been duly organized and is validly existing as a Maryland corporation, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Offering, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in under the condition, financial or otherwise, or in the earnings, capital, properties or business caption "Capitalization," no shares of the Primary Parties and the conditions set forth in this Section 8 Common Stock have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; (v) at the Primary Parties time of the Offering, the Shares subscribed for pursuant to the Offering will have complied been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The execution and will comply delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, 19NEXT PAGE conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions, the deposits of which are insured by the FDIC and bank holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions and their holding companies, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(viii) The Conversion Application has been approved by the OTS has issued its letter of intent not to object and the Prospectus has been authorized for use by the Agencies, and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval. The Holding Company Application has been approved by the OTS and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(ix) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank.
(x) Subject to the satisfaction of the conditions to the Agencies' approval of the Offering, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the NYSE (as to which no opinion need be rendered). The Offering has been consummated in all material respects in accordance with all obligations Conversion Regulations and the SLHC Act, except that no opinion is rendered with respect to be satisfied (a) the Conversion Application, the Holding Company Application, the Registration Statement or Prospectus, which are covered by them after other clauses of this opinion, (b) the Closing Date; satisfaction of the post-Offering conditions in the Conversion Regulations or in the Agency approvals of the Conversion Application and the Holding Company Application, (vic) the securities or "blue sky" laws of various jurisdictions and (d) the rules and regulations of the NASD.
(xi) The Registration Statement is effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, threatened by the Commission or any state authority; Commission.
(viixii) no order suspending At the Conversiontime the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Offerings or Conversion Application, including the use Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, Texas and federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be 20NEXT PAGE rendered). At the time the Holding Company Application, including the Prospectus has been issued contained therein, was approved by the OTS, the Holding Company Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, Texas, Maryland and federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no proceedings for opinion need be rendered).
(xiii) At the time that purpose are pending orthe Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations, the SLHC Act and federal law.
(xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the knowledge description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; Shares is in due and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversionproper form.
(gxv) None of the Primary Parties shall have sustained, since the date of the latest financial statements included There are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement, the General Disclosure Package Statement and Prospectus, other than those disclosed therein, and all pending legal and governmental proceedings to which the Company or the Bank is a party or of which any material loss or interference with its business from fireof their property is the subject, explosion, flood or other calamity, whether or which are not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus, and since including ordinary routine litigation incidental to the respective dates Company's or the Bank's business, are, considered in the aggregate, not material.
(xvi) There are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Holding Company Application, the Registration Statement or the Prospectus or required to be filed as of which information is given exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Holding Company Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Holding Company Application, 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.
(xvii) The Company and the Bank have conducted the Offering, in all material respects, in accordance with all applicable requirements of the Plan and applicable federal law, except that no opinion is rendered with respect to (a) the Conversion Application, the Holding Company Application, the Registration Statement or Prospectus, there shall not have been any Material Adverse Effect that is which are covered by other clauses of this opinion, (b) the satisfaction of the post-Offering conditions in the Agent’s reasonable judgment sufficiently Conversion Regulations or in the OTS approval of the Conversion Application, (c) the securities or "blue 21NEXT PAGE sky" laws of various jurisdictions, and (d) the rules and regulations of the NASD. The Plan complies in all material respects with all applicable Texas and adverse as federal laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; no order has been issued by the OTS, or any state authority to make it impracticable or inadvisable to proceed with suspend the Offerings Offering or the delivery use of the Shares on Prospectus, and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the terms OTS, or any state authority and in no person has sought to obtain regulatory or judicial review of the manner contemplated in final action of the Agencies, approving the Plan, the Conversion Application or the Prospectus.
(hxviii) Prior The Company and the Bank have obtained all material federal licenses, permits and other federal governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and at other governmental authorizations or the Closing Date: (i) failure to be in compliance therewith would not have a material adverse effect on the reasonable opinion business or operations of the AgentBank and the Company, there shall taken as a whole.
(xix) Neither the Company nor the Bank is in violation of its Charter and bylaws, as appropriate or, 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 been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary PartiesCompany and the Bank on a consolidated basis. The execution and delivery of this Agreement, considered as one enterprise, from that as the occurrence of the latest dates as of which such condition is 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 Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other than transactions referred instrument to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition Company or the Bank is a party or by which any of them may be bound, or to which any of the Primary Parties is set forth in the Prospectus, other than transactions referred to property or contemplated therein; (iii) none assets of the Primary Parties shall have received Company or the Bank are subject; and, such action will not result in any violation of the provisions of the charter or bylaws of the Company or the Bank or, to such counsel's Actual Knowledge, result in any violation of any applicable federal law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xx) The Company's and the Bank's charter and bylaws comply in all material respects with the rules and regulations of the Agencies.
(xxi) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from the FRB, the Division or the FDIC any direction (oral or written) OTS to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixxii) Concurrently with The information in the execution Prospectus under the captions "How we are Regulated," "Affiliated Bank's Conversion," "Restrictions on Acquisition of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as BancAffiliated and 22NEXT PAGE Affiliated Bank" and "Description of the date hereof and addressed Capital Stock of BancAffiliated," to the Agent: (i) confirming extent that Wolf & Companysuch information constitutes matters of law, P.C. summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form correct in all material respects with the applicable accounting requirements and related published rules and respects. The discussion of statutes or regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came described or referred to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with accurate summaries and fairly present the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 information required to be in agreement therewith (subject to rounding)shown.
(jxxiii) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding The Company is not otherwise prohibited by applicable law or regulation for in good standing as a savings and loan holding company under the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing DateSLHC Act.
(kxxiv) At In addition, such counsel shall state that during the Closing Date, preparation of the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing DateConversion Application, the Holding Company shall receive a letter from RP FinancialApplication, LC.the Registration Statement and the Prospectus, dated they participated in conferences with certain officers of, the Closing Date (i) confirming that said firm is independent public and internal accountants for, and other representatives of the Primary Parties Company and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to at which conferences the Closing Date, the Agent shall receive: (i) a copy contents of the letter from the FRB approving Conversion Application, the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared , the Registration Statement effective; (iv) certificate from and the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence Prospectus and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) related matters were discussed and, while such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall counsel have not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OTS, the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's, the MHC's, the Mid-Tier Holding Company's or the Association's knowledge, threatened by the CommissionOTS, the FRB, the Division SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesCompany, the MHC, the Mid-Tier Holding Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing in good standing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances State of Delaware; the MHC has been duly organized and is validly existing in good standing as a federal mutual holding company under which they were made, not misleadingthe laws of the United States of America; the Mid-Tier Holding Company has been duly incorporated and is validly existing as a federally-chartered holding company in good standing under the laws of the United States of America.
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business Each of the Primary Parties Company, the MHC and the conditions set forth in this Section 8 Mid-Tier Holding Company have been satisfied; (iii) since the full corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus, .
(iii) The Association is a validly existing federally-chartered savings association in stock form duly authorized to conduct its business and since the respective dates own its property as of which information is given described in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery . All of the Shares on capital stock of the terms Association to be outstanding upon completion of the Conversion will be duly authorized and in will be validly issued, fully paid and non-assessable and will be owned by the manner contemplated in the ProspectusCompany, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(hiv) Prior to and at the Closing Date: (i) The Association is a member in the reasonable opinion good standing of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business FHLB-Indianapolis. The deposit accounts of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into Association are insured by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed up to the Agent) maximum amount allowed under law and no proceedings for the termination or which materially and adversely would affect the financial condition, results revocation of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be such insurance are pending or, to such counsel's Actual Knowledge, threatened; the knowledge description of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken liquidation account as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as under the Agent may reasonably request; captions "The Conversion - Effects of Conversion on Depositors, Borrowers and they have found such amounts Members - Effect on Liquidation Rights" and percentages "Liquidation Rights" to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer that such information constitutes matters of shares of common stock or other securities of the Holding Company is not otherwise prohibited law and legal conclusions, has been reviewed by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties counsel and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies accurately described in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectrespects.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Reorganization are subject, to the extent not waived in writing by the Agent, 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 Offerings and at and as of the Closing DateTime, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to any of the Primary Parties’ best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ best knowledge, threatened by the Department, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body. The Applications shall have been approved by the Department and all terms, conditions, requirements and provisions thereof imposed by the Department shall have been satisfied.
(cb) At the Closing DateTime, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent, to the effect that:
(di) The Holding Company 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) LMIC is a duly incorporated and validly subsisting Pennsylvania insurance company in mutual form and, following the Conversion, will be a duly incorporated and validly existing Pennsylvania insurance company 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 issuance and sale of the Common Stock of LMIC to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and LMIC 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. To the best of such counsel’s knowledge, (x) each of the Holding Company and LMIC has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, (y) all such licenses, permits and other governmental authorization are in full force and effect, and (z) the Holding Company and LMIC are complying therewith in all material respects.
(iii) LMIC has all requisite 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 the Holding Company and LMIC have obtained all licenses, permits and other governmental authorizations currently required for the conduct of their respective businesses, except where the failure to obtain any such license, permit or authorization would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Holding Company and LMIC, considered as one enterprise.
(iv) The authorized capital stock of the Holding Company consists of 25,000,000 shares, divided into two classes of common stock having a par value of $0.01 per share (“Common Stock”), consisting of 15,000,000 shares of Class A Common Stock and 5,000,000 shares of Class B Common Stock, and 5,000,000 shares of preferred stock, having such par value, if any, as the board of directors shall fix and determine; no shares of Common Stock or preferred stock will be issued and outstanding prior to the Closing Time. Immediately upon consummation of the Reorganization, (a) the issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization”; (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the shares of Common Stock 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.
(v) 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 MTS; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties and MTS (in the case of MTS, limited to its obligations set forth in Section 19 hereof), 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.
(vi) The Plan has been duly adopted by the Board of Directors of LMIC in the manner required by the Conversion Regulations and LMIC’s charter and bylaws.
(vii) Upon consummation of the Offerings, to the knowledge of such counsel, 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, or any other governmental agency, if any, were complied with by LMIC in all material respects or appropriate waivers were obtained and all notice and waiting periods were satisfied, waived or elapsed.
(viii) The Applications have been approved by the Department 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.
(ix) The purchase by the Holding Company of all of the issued and outstanding Common Stock of LMIC has been authorized by the Department and no action has been taken, or to such counsel’s knowledge, is pending or threatened, to revoke any such authorization or approval.
(x) The Registration Statement is 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 material tax consequences of the Reorganization are set forth in the Prospectus under the caption “CONVERSION — Tax Effects Generally” and “- Tax Consequences of Subscription Rights” and such tax information has been reviewed by such counsel and fairly describes the opinion rendered by such counsel to the Primary Parties with respect to such matters.
(xii) The terms and provisions of the shares of Common Stock of the Holding Company 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 of the Holding Company comply with all applicable laws and regulations, including, without limitation, as to form.
(xiii) At the Closing Date, time the Agent shall have received the favorable opinion, dated Applications were approved and as of the Closing Date Time, the Applications (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and addressed Acquisition Regulations, as applicable, and all applicable laws, rules and regulations and decisions and orders of the Department, except as modified or waived in writing by the Department (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, approving such Applications.
(xiv) At the time that the Registration Statement became effective and as of the Closing Time, 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.
(xv) 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.
(xvi) The information in the Prospectus under the captions “BUSINESS — “ Regulation,” “THE CONVERSION — Tax Effects Generally” and “- Tax Consequences of Subscription Rights,” “RESTRICTIONS ON ACQUISITION OF THE HOLDING COMPANY,” “DESCRIPTION OF CAPITAL STOCK” and “THE CONVERSION,” to the Agent extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and for is accurate in all material respects.
(xvii) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xviii) LMIC has duly adopted a Pennsylvania stock charter and bylaws effective upon consummation of the Reorganization and, to such counsel’s knowledge, none of the Primary Parties is in violation of its benefitcharter 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 Silverthe Primary Parties considered as one enterprise, ▇▇▇▇▇▇▇▇or on the earnings, Taff & 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 and MTS, 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 (or other constituent documents) of any of the Primary Parties or MTS or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree.
(xix) With respect to the offering, MTS and its affiliates, including ▇▇▇▇▇▇▇ LLPFinancial Group, special LLC, a FINRA member, are in compliance with all applicable FINRA rules, have made all necessary FINRA filings and received all necessary approvals or, alternatively, that no such rules are applicable and no such filings or approvals are required.
(xx) MTS is a limited liability company duly organized and validly subsisting under the laws of the Commonwealth of Pennsylvania, with full power and authority to enter into this Agreement and the other agreements to which it is a party related to the Conversion and the Offering. In rendering such opinion, such counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers and directors of the Primary Parties and MTS (to the extent relevant) and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered pursuant hereto or as to Agent together with the opinion to be rendered hereunder by counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall reasonably request and state that it has no reason to believe that the opinion of ▇▇▇▇ delivered pursuant to Section 8(c)Agent is not justified in relying thereon.
(e2) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇The letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating ▇ addressed to the Offerings, including Agent’s participation therein, shall have been furnished prior Agent to the mailing effect that during the preparation of the Prospectus to Registration Statement and the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇Prospectus, ▇▇▇▇▇▇▇ & ▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, MTS, 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 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇ has not independently verified the accuracy, P.C. shall state completeness or fairness of the Agent may rely. The blue sky memorandum will relate statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the necessity attention of obtaining or confirming exemptions, qualifications or ▇▇▇▇▇▇▇ & ▇▇▇ that caused ▇▇▇▇▇▇▇ & ▇▇▇ to believe that the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer Registration Statement and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time it was declared effective by the Prospectus became authorized for final useCommission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; misleading (ii) since the date the Prospectus became authorized for final use, it being understood that counsel need express no event has occurred which should have been set forth in an amendment comment or supplement opinion with respect to the Prospectus which has not been so set forthfinancial statements, including specificallyschedules and other financial and statistical data included, but without limitationor statistical or appraisal methodology employed, any material adverse change in the conditionRegistration Statement, financial Prospectus or otherwiseGeneral Disclosure Package).
(3) The favorable opinion, dated as of the Closing Time, of 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 in as such counsel may reasonably request and upon the earnings, capital, properties opinion of counsel to the Primary Parties and MTS or business of other counsel acceptable to the Agent.
(4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ & ▇▇▇ addressed to the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since Agent relating to the respective dates as Offerings, including the Agent’s participation therein. The Blue Sky Memorandum will address the necessity of which information is given in obtaining or confirming exemptions, qualifications or the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business registration of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any Common Stock under applicable state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversionsecurities law.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated as of the date hereof and addressed to the Agent: , such letter (i) confirming that Wolf & Company▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, P.C. is a firm of an independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal RegulationsProfessional Ethics of AICPA, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects it is registered with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Sources: Agency Agreement (Lmi Holdings Inc)
Conditions to the Agent’s Obligations. The Company and the Agent agree that obligations of the Agent hereunder, as hereunder are subject to the Shares to be delivered at accuracy of the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company contained herein are, at and as of the commencement date hereof and the Closing Time, to the accuracy of the Offerings statements of officers and at and as directors of the Closing DateCompany and its subsidiaries (including the Bank) made pursuant to the provisions hereof, true to the performance by the Company and correct in all material respects, its subsidiaries (including the condition that the Primary Parties shall have performed all Bank) of its their obligations hereunder to be performed on or before such dateshereunder, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared become effective by the Commission, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on at or before the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authorityissued, and prior to that time, no stop order or other action suspending the authorization of the Prospectus or the consummation of the Conversion proceeding shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s knowledge, threatened by the Commission. Any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Agent and the Company. The Company shall not have filed with the Commission the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus without consent of the Agent, which consent shall not have been unreasonably withheld or delayed. The Agent shall not have discovered and disclosed to the Company, on or prior to the date of this Agreement, that the Registration Statement, the FRBGeneral Disclosure Package or the Prospectus or any amendment or supplement to the Registration Statement, the Division General Disclosure Package or any other Federal the Prospectus contains an untrue statement of a fact that, in the reasonable opinion of the Agent, is material or omits to state authoritya fact that, in the reasonable opinion of the Agent, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(cb) At the Closing DateTime, the Agent shall have received the received:
(i) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, acceptable to Agent and in form and substance satisfactory to counsel for Agent, as set forth in Exhibit A hereto.
(ii) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, LLP in form and substance as attached hereto as Exhibit C.
(d) At to the Closing Dateeffect that during the preparation of the Registration Statement, the Agent shall have received General Disclosure Package and the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of SilverProspectus, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP participated in conferences with certain officers of and other representatives of the Company and the Bank, counsel to Agent, representatives of the independent public accounting firm for the Company and representatives of Agent at which the contents of the Registration Statement, the General Disclosure Package 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)(i) hereof) ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to believe that (A) the Registration Statement at the time it was declared effective by the Commission, P.C. shall (B) the General Disclosure Package as of the time and date as of which the subscription ratio and subscription price were determined and as of the date of such letter and (C) the Prospectus, as of its date and as of the date of such letter, 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 data included in the Registration Statement, the Prospectus or the General Disclosure Package).
(iii) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Day, with respect to such matters as the Agent may rely. The blue sky memorandum will relate reasonably require, in form and substance satisfactory to the necessity Agent.
(c) Concurrently with the execution of obtaining this Agreement and on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP shall have furnished to the Agent a letter or confirming exemptionsletters, qualifications dated the respective dates of delivery thereof, in form and substance satisfactory to the Agent, containing statements and information of the type ordinarily included in accountants “comfort letters” with respect to the financial statements of the Company and certain financial information contained in the Prospectus.
(d) At the Closing Time, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP shall have delivered a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (c) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(e) At the Closing Time, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may reasonably require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the registration fulfillment of any of the Shares under applicable state securities lawconditions herein contained.
(f) At the Closing DateTime, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form Company and substance reasonably satisfactory to the Agent’s CounselBank, dated as of such the Closing DateTime, without personal liability to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties or business affairs of the Primary Parties independentlyCompany and the Bank, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (viv) the Primary Parties have Company has complied in all material respects with all material agreements and have satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date Time including the conditions contained in this Section 9; and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (viv) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversiongovernmental body.
(g) None of the Primary Parties The Company shall not have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and the 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 Adverse Effect that 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, shareholders’ equity or results of operations of the Company, 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 Offerings or the delivery of the Shares Stock Offering on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing DateTime: (i) in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial conditioncondition or in the earnings, results of operations operations, capital, properties or business affairs of the Primary PartiesCompany and the Bank, considered as one enterprise, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the Company or the Bank, independently or considered as one enterprise, from the latest dates date as of which the financial condition of the Primary Parties Company is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of neither the Primary Parties Company nor the Bank shall have received from the FRB, the Division FDIC or the FDIC OTS any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied with in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as reasonably be expected to have a wholeMaterial Adverse Effect; (iv) none except as disclosed in the General Disclosure Package and the Prospectus, the Company and its subsidiaries (including the Bank) are not in violation of any enforcement action (formal or informal) from the Primary Parties OTS, the FDIC, or any other agency that has directed the Company or any of its subsidiaries (including the Bank) to make any material change in the method of conducting their respective businesses; (v) neither the Company nor the Bank 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; (vvi) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary PartiesCompany or the Bank, threatened against the any of Company or the Primary Parties Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as reasonably be expected to have a wholeMaterial Adverse Effect; and (vivii) the Shares Securities shall have been qualified or registered for offering and sale or exempted therefrom issuance under the securities or blue sky “Blue Sky” laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesAgent.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letter order from the FRB approving Commission declaring the Holding Company Application; Registration Statement effective, (ii) a certified copy of a letter from the FRB approving First Amended and Restated Articles of Incorporation of the Conversion Application; Company, (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; , and (xivi) such any other documents and certificates as the that Agent may shall reasonably request.
(nj) Subsequent to the date hereof, there shall not have occurred any of the following; : (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter marketExchange, or quotations halted generally on the Nasdaq Stock Global Select Market, the Nasdaq Capital Market or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market FINRA or by order of the Commission or any other governmental authorityauthority other than temporary trading halts or limitations (A) imposed as a result of intraday changes in the Dow ▇▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of commercial banks, federally-insured financial institutions or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations federally-insured financial institutions declared by either federal or state authorities; (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the engdate hereof; or (iv) a material adverse change in the United States financial markets or elsewhere if the effect of any of (i) through (iv) herein, in Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Stock Offering on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(k) Prior to the distribution of the Prospectus, the Agent shall have received an agreement substantially in the form of Exhibit B hereto signed by the persons listed on Schedule A hereto.
(l) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and of counsel for Agent. Any certificate signed by an officer of the Company or the Bank and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to Agent as to the statements made therein. If any condition to Agent’s obligations hereunder to be fulfilled prior to or at the Closing Time is not fulfilled, Agent may terminate this Agreement (provided that if this Agreement is so terminated but the sale of Securities is nevertheless consummated, Agent shall be entitled to the compensation provided for in Section 4 hereof) or, if Agent so elects, may waive any such conditions which have not been fulfilled or may extend the time of their fulfillment.
(m) Prior to the Closing Date, the Company shall have received all necessary Shareholder Approvals required for the consummation of the Stock Offering and performance of its obligations under this Agreement.
Appears in 1 contract
Sources: Agency Agreement (PVF Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary CF Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary CF Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary CF Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the CF Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the CF Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the CF Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, Conversion Applications, the Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, the financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the CF Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the CF Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the CF Parties, which are subject to the internal controls of the accounting system of the CF Parties and other data prepared by the CF Parties from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to subsection (d) of this Section 8(c)11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCF Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary CF Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by CBI, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, Federal Reserve in approving the Division Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the CF Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary CF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesCF Parties independently, considered or the CF Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the letter from the Federal Reserve approving the Conversion Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Cincinnati evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the Primary CF Parties shall will have received from the FRBFederal Reserve, the Division OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the date hereofAgent and to counsel for the Agent. Any certificate signed by an officer of a CF Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such CF Party, there to the Agent as to the statements made therein.
(o) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall not have occurred any been furnished prior to the mailing of the following; (i) Prospectus, to CBI with a suspension copy thereof addressed to Agent or limitation in trading in securities generally on upon which ▇▇▇▇ ▇▇▇▇▇▇, P.C. shall state the New York Stock Exchange (Agent may rely. The blue sky memorandum will relate to the “NYSE”) necessity of obtaining or in the over-the-counter marketconfirming exemptions, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges qualifications or the Nasdaq Stock Market or by order registration of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or Shares under applicable state authorities; (iii) the engsecurities law.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank, herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator)laws of Tennessee, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Form AC and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s or the Bank’s knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., LLP special counsel for the Primary Parties, Company and the Bank in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Tennessee.
(ii) since the date the Prospectus became authorized for final useThe Company has corporate power and authority to own, no event has occurred which should have been set forth in an amendment or supplement lease and operate its properties and to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change conduct its business as described in the conditionForm AC, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the ConversionPackage.
(giii) None The Bank is a validly existing federally-chartered savings bank in mutual form and immediately following the completion of the Primary Parties shall have sustainedConversion will be a validly-existing federally-chartered savings bank in stock form and, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with both instances duly authorized to conduct 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 and own its property as set forth described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank, upon completion of the Conversion, will be duly authorized and, upon payment therefor, validly issued, fully-paid and since non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Cincinnati. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or threatened. The description of the liquidation account as set forth in the Prospectus under the caption “The Conversion and Stock Offering — Effects of Conversion to Stock Form — Liquidation Account,” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) The only subsidiaries of the Bank are Southland Finance, Inc., Ti-Serv, Inc. and Valley Title Services, LLC. The operations of the Subsidiaries are not material to financial condition, results of operations, capital, properties or business prospects of the Company and the Bank, taken as a whole. The Subsidiaries have been duly organized and are validly existing as corporations in good standing under the laws of Tennessee, have full corporate power and authority to own, lease and operate their properties and to conduct their respective dates businesses as of which information is given described in the Registration Statement and the Prospectus, there shall and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have been any a Material Adverse Effect that is Effect. Each Subsidiary has obtained all licenses, permits and other governmental authorizations required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect and the Subsidiaries are in all material respects complying therewith; the activities of the Subsidiaries are permitted to subsidiaries of a federally chartered savings bank by the rules, regulations and practices of the Federal Deposit Insurance Corporation (“FDIC”) and the OTS in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery case of the Shares on Bank; all of the terms issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; and there are no warrants, options or rights of any kind to acquire shares of capital stock of any Subsidiary.
(vi) The Foundation has been duly organized and is validly existing as a non-stock corporation in good standing under the manner contemplated laws of the State of Delaware with corporate power and authority to conduct its business as described in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of Company and the Primary PartiesAgent, threatened against all approvals required to establish the any of Foundation and to contribute the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Foundation Shares shall thereto have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions obtained as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included described in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included specifically disclosed in the Prospectus and the performance Proxy Statement, there are no agreements and/or understandings, written or oral or otherwise, between any of the procedures referred Company, the Agent and the Foundation with respect to the control, directly or indirectly, over the voting and the acquisition or disposition of the shares of Common Stock to be contributed by the Company to the Foundation; the Foundation Shares to be issued to the Foundation in clause (ii) of this subsection (h), they have compared accordance with the general accounting records Plan and as described in the Prospectus will have been duly and validly authorized for issuance and, when issued and contributed by the Company pursuant to the Plan, will be duly authorized and validly issued and fully paid and non-assessable. Upon issuance of the Mid-TierFoundation Shares, which are good title to the Foundation Shares will be transferred from the Company to the Foundation, subject to such claims as may be asserted against the internal controls Foundation by third-party claimants.
(vii) The authorized equity capital of the Mid-TierCompany consists of shares of common stock and shares of preferred stock. Immediately following the consummation of the Offering and the issuance of the Foundation Shares to the Foundation, the accounting system authorized, issued and other data prepared by outstanding Common Shares of the Mid-Tier, directly from such accounting records, to Company will be within the extent specified in such letter, such amounts and/or percentages range set forth in the Prospectus as under the Agent may reasonably request; caption “Capitalization,” and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of no shares of common capital stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days have been issued prior to the Closing Date.
(l) At ; at the Closing Datetime of the Offering, the Holding Common Shares subscribed for pursuant to the Conversion will have been duly and validly authorized for issuance, and when issued and delivered by the Company shall receive a letter from RP Financial, LC., dated pursuant to the Closing Date (i) confirming that said firm is independent Plan against payment of the Primary Parties and is experienced and expert consideration calculated as set forth in the area of corporate appraisals within Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the meaning of Title 12 ESOP with funds borrowed from the Company and shares issued and contributed to the Foundation by the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Code Shares is not subject to preemptive rights (other than subscription rights as provided in the Plan) and the terms and provisions of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies Shares conform in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation description thereof contained in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties MHC, the Company and the Bank, herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties MHC, the Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties MHC, the Company and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Reorganization Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator)laws of Alabama, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the MHC-1/MHC-2 Application and Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Parties’ MHC’s, the Company’s or the Bank’s knowledge, threatened by the Commission, the FRBOTS, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesMHC, the Company and the Bank in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined As of the Prospectus and, in their opinion, at the time the Prospectus became authorized for final useClosing, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make Company and the statements therein, in light MHC have been incorporated and are validly existing as corporations under the laws of the circumstances under which they were made, not misleading; United States of America.
(ii) since As of the date Closing, the Prospectus became authorized for final useCompany and the MHC have corporate power and authority to own, no event has occurred which should have been set forth in an amendment or supplement lease and operate their properties and to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change conduct their business as described in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus.
(iii) since The Bank is a validly existing federally-chartered savings bank in mutual form and immediately following the respective dates completion of the Reorganization will be a validly-existing federally-chartered savings bank in stock form and is authorized to conduct its business and own its property as of which information is given described in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change . The activities of the Bank as described in the conditionGeneral Disclosure Package and the Prospectus are permitted by rules, financial or otherwise, or in the earnings, capital, properties or business regulations and policies of the Primary Parties independently, or OTS. All of the Primary Parties considered as one enterpriseoutstanding capital stock of the Bank, whether upon completion of the Reorganization, will be authorized and, upon payment therefore, validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or not arising in the ordinary course of business; other restrictions.
(iv) The Bank is a member of the representations FHLB-Atlanta. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and warranties to such counsel’s Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened.
(v) Immediately following the consummation of the Offering, the authorized, issued and outstanding Common Shares of capital stock of the Company will be within the range set forth in Section 4 are true the General Disclosure Package and correct with the same force Prospectus under the caption “Capitalization,” and effect as though expressly made at and as no Common Shares of capital stock of the Company have been issued prior to the Closing Date; at the time of the Reorganization, the Common Shares subscribed for pursuant to the Reorganization and the Charitable Foundation Shares 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 the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares and the Charitable Foundation Shares is not subject to preemptive rights (vother than subscription rights as provided in the Plan) and the Primary Parties have complied terms and provisions of the Shares conform in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date description thereof contained in the General Disclosure Package and the Prospectus. To such counsel’s Actual Knowledge, the Shares will comply in all material respects with all obligations not, when issued, be subject to be satisfied any liens, charges, encumbrances or other claims created by them after the Closing Date; Company.
(vi) The authorized capital stock of the Bank is owned beneficially and of record by the Company, to such counsel’s Actual Knowledge, free and clear of any security interest, mortgage, pledge, lien, or encumbrance. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued, fully paid and non-assessable and was exempt from registration under the 1933 Act.
(vii) The issuance of the MHC Shares is exempt from registration under the 1933 Act and is not subject to preemptive rights arising by operation of federal laws and regulations or the Company’s charter, except for subscription rights granted pursuant to the Plan in accordance with the Reorganization Regulations.
(viii) The MHC, the Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the Offering, including funding of the Charitable Foundation and issuance of the Charitable Foundation Shares have been duly and validly authorized by all necessary action on the part of the MHC, the Company and the Bank; and this Agreement is a valid and binding obligation of the Company, enforceable against the MHC, Company and the Bank, in accordance with its terms, except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors? rights generally or the rights of creditors of federally chartered savings institutions or holding companies as applicable, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ix) The MHC-1/MHC-2 Application and the Holding Company Application have been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel’s Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(x) Based upon the minutes of the proceedings of the Board of Directors, the Plan has been duly adopted by the required vote of the directors of the MHC, the Company and the Bank and, based upon the Secretary’s Certificate at the special meeting, the Plan and the contribution to the Charitable Foundation have been approved by the required vote of the Bank’s members.
(xi) Subject to the satisfaction of the conditions to the OTS’s approval of the Reorganization, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the consummation of the Reorganization and the issuance of the Shares, including the issuance of the Charitable Foundation Shares, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the FINRA (as to which no opinion need be rendered).
(xii) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel’s Actual Knowledge, threatened by the Commission or any state authority; Commission.
(viixiii) no order suspending At the Conversiontime the MHC-1/MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the Offerings or MHC-1/MHC-2 Application, including the use Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations except as waived or otherwise approved by the OTS (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xiv) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus has been issued (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no proceedings for that purpose are pending oropinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xv) The terms and provisions of the Shares of common stock of the Company conform, in all material respects, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth description thereof contained in the Registration Statement and the Prospectus, and since the respective dates as form of certificate used to evidence the Shares complies with applicable laws.
(xvi) To such counsel’s Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or (iii) which information is given are required to be disclosed in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated those disclosed therein; .
(iixvii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition None of the Primary Parties is set forth in MHC, the ProspectusCompany, other than transactions referred the Charitable Foundation or the Bank are required to or contemplated therein; be registered as an investment company under the Investment Company Act of 1940.
(iiixviii) To such counsel’s Actual Knowledge, none of the Primary Parties shall have received MHC, the Company or the Bank is in violation of any directive from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting its respective business.
(xix) To such counsel’s Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC-1/MHC-2 Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC-1/MHC-2 Application, the Registration Statement or the Prospectus. The description in the MHC-1/MHC-2 Application, 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.
(xx) Except as waived or otherwise approved by the OTS, the Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Reorganization Regulations; to such counsel’s Actual Knowledge, no order has been issued by the OTS, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or threatened by the OTS, the Commission, the FDIC, or any other state authority and, to such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the MHC-1/MHC-2 Application, the Holding Company Application or the Prospectus.
(xxi) To such counsel’s Actual Knowledge, the Company, the MHC and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their business with which it has not complied (which directionbusinesses as described in the Registration Statement, if any, shall have been disclosed except to the Agent) extent that a failure to obtain such a license, permit or which materially other governmental authorization would not have a material adverse effect on the MHC, the Company and adversely would affect the financial condition, results of operations or business of the Primary PartiesBank, taken as a whole; , and all such licenses, permits and other governmental authorizations are in full force and effect, and the MHC, the Company and the Bank are in all material respects complying therewith.
(ivxxii) To such counsel’s Actual Knowledge, none of the Primary Parties shall have been MHC, the Company or the Bank is in violation of its Charter and Bylaws or in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision violation of any agreement obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument relating to any outstanding indebtedness; (v) no action, suit or proceeding, at law or in equity or before which it is a party or by any federal which it or state commissionits property may be bound, board except for such defaults or other administrative agency, violations which would not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect have a material adverse impact on the financial condition, condition or results of operations or business of the Primary PartiesMHC, taken as the Company and the Bank on a wholeconsolidated basis; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with such counsel’s Actual Knowledge, the execution and delivery of this Agreement, the Agent shall receive incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not, in any material respect, conflict with or constitute a letter from Wolf & 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 MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject; and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company, P.C.the Bank or MHC, dated as or result, in any material respect, in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the date hereof FINRA need be rendered) or order or court order, writ, injunction or decree.
(xxiii) Except as waived or otherwise approved by the OTS, the MHC’s, Company’s and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) Bank’s respective Charters and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Bylaws each comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations laws of the FRB United States of America.
(xxiv) The Charitable Foundation has been duly incorporated and any other applicable regulator and is validly existing as a non-stock corporation under the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards laws of the Public Company Accounting Oversight Board (United States)) consisting State of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-TierDelaware with corporate power and authority to own, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties lease and consultations with officers of the Mid-Tier responsible for financial operate its properties and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included conduct its business as described in the Prospectus; or (B) during no additional approvals are required to contribute the period from Charitable Foundation Shares to the date Charitable Foundation as described in the Prospectus; to the Actual Knowledge of counsel, the Charitable Foundation is not a savings and loan holding company within the meaning of the latest consolidated financial statements included HOLA as a result of the issuance of shares of Common Shares to it in accordance with the terms of the Plan and in the Prospectus to a specified date not more than three business days prior to amounts as described in the date Prospectus. Upon issuance of the Prospectus, except Charitable Foundation Shares in accordance with the Plan and as has been described in the Prospectus, there was any increase in longthe Charitable Foundation will have full legal title to the Charitable Foundation Shares, subject to such claims as may be asserted against the Charitable Foundation by third-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or party claimants.
(Cxxv) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included The information in the Prospectus and ended on under the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a captions “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engSupervision
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of -------------------------------------- the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Roebling Parties herein contained are, at and as of the commencement of the Offerings and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct correct, the condition that the Roebling Parties shall have performed, in all material respects, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB OTS and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Roebling Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore initiated or, to the Primary knowledge of the Roebling Parties’ knowledge, threatened by the OTS, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Malizia Spidi & ▇▇F▇▇▇▇, P.C.PC, special counsel for couns▇▇ ▇▇r the Primary Roebling Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed and/or local counsel acceptable to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers satisfactory to the Agent and directors 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 Primary Parties delivered pursuant hereto or State of New Jersey, with corporate power and authority to own, lease and operate its properties and to conduct the business currently conducted by the Mid-Tier Holding Company, as described in the Prospectus, and is duly qualified to transact business and is in good standing in New Jersey and in each other jurisdiction in which the conduct of its business requires such counsel shall reasonably request qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federally-chartered stock savings association, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings association, with full power and authority to own, lease and operate 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 federal law and the opinion rules, regulations and practices of ▇▇▇▇ the FDIC and the OTS (or valid waivers granted by the OTS from such rules, regulations and practices); 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 therefore 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. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted under applicable federal law (or valid waivers granted by the OTS from such law). To such counsel's actual knowledge, each of the MHC, the Mid-Tier 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 comply therewith in all material respects.
(iv) The Bank is a member in good standing of the Federal Home Loan Board of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, up to the maximum amount allowed under law. To such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(v) 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); (b) the shares to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to Section 8(cthe Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable; and (c) the issuance of the Shares is not subject to preemptive rights under the certificate 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. To such counsel's knowledge, upon issuance of the shares of Common Stock, good title to the shares will be transferred from the Holding Company to the purchasers thereof against payment therefore, subject to such claims as may be asserted against the purchasers thereof by third-party claimants (such as any liens, charges or other claims).
(evi) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating The Roebling Parties have full corporate power and authority to enter into this Agreement and to consummate the Offerings, including Agent’s participation therein, shall transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been furnished prior to duly and validly authorized by all necessary corporate action on the mailing part of the Prospectus to the Holding Company with Roebling Parties; and this Agreement constitutes a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇valid, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer legal and the Chief Financial Officer binding obligation of each of the Primary Parties Roebling Parties, enforceable in form accordance with its terms, except as rights to indemnity and substance reasonably satisfactory contribution thereunder may be limited under applicable law, subject to the Agent’s Counselqualification that enforceability thereof may be limited by (i) bankruptcy, dated as insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, (ii) general equity principles (regardless of whether such Closing Date, enforceability is considered in a proceeding in equity or at law) and to the effect that: (i) they have carefully examined of certain laws and judicial decisions upon the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement availability of a material fact or omit to state a material fact necessary in order to make the statements therein, in light injunctive relief and enforceability of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forthequitable remedies, including specificallythe remedies of specific performance and self-help, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since laws relating to the respective dates as safe ty and soundness of which information is given in the Registration Statementinsured depository institutions, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) applicable law or public policy with respect to the representations indemnification and/or contribution provisions of Sections 23A and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as 23B of the Closing Date; Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (vregardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Plan has been duly adopted by the Primary Parties have complied Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws. The Plan complies in all material respects with all agreements the Conversion Regulations.
(viii) The Conversion Application and the Holding Company Application have satisfied all conditions on their part been approved by the OTS, and no action has been taken and, to be performed such counsel's knowledge, none is pending or satisfied at threatened to revoke such approval or prior to suspend the offering or the use of the Prospectus. Subject to the Closing Date 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 will comply in all material respects with all obligations 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 securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be satisfied by them after rendered and except as may be required under the Closing Date; rules and regulations of the NASD as to which no opinion need be rendered.
(viix) The Registration Statement is effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been initiated orissued, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orhave been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform, in all material respects, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth description thereof contained in the Registration Statement and the Prospectus, and since the respective dates form of certificates used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved by the OTS, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes thereto, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) 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 thereto, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which information is given 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.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares, or (iii) which are required to be disclosed in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than those disclosed therein.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on Acquisition of Roebling Financial Corp Inc.," "Description of Capital Stock," and "The Conversion," 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.
(xv) None of the Roebling Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) None of the Roebling Parties is in violation of its Certificate 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 to which it is a party or by which it or its property may be bound, which violation or default would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Roebling Parties, the incurrence of the obligations set forth herein and the consummation of the transactions referred to contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or contemplated therein; charter, as the case may be, or the bylaws of any of the Roebling Parties, (ii) there shall have been any violation of any applicable law, act, regulation (except that no material transaction entered into by any Primary Party since opinion with respect to the latest dates as securities and blue sky laws of which various jurisdictions or the financial condition rules and regulations of the Primary Parties is set forth in the ProspectusNASD need be rendered), other than transactions referred or to such counsel's knowledge, order or contemplated therein; 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 or otherwise known by such counsel which should have otherwise been filed as an exhibit to the Registration Statement, which violation would have a Material Adverse Effect.
(xvii) To such counsel's knowledge, the Roebling Parties have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Roebling Parties are in all material respects complying therewith.
(xviii) The Holding Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of New Jersey. The Bank's respective Charter and Bylaws comply in all material respects with federal law.
(xix) To such counsel's knowledge, none of the Primary Roebling Parties shall have received are in violation of any directive from the FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixx) Concurrently with 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 execution of this AgreementConversion Application, the Agent shall receive a letter from Wolf & Company, P.C., dated Registration Statement or the Prospectus or required to be filed as of the date hereof and addressed exhibits thereto other than those described or referred to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier therein or filed as of December 31, 2011 and 2012, and covered by their opinion included exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus, and any other more recent unaudited financial statements included . The description in the ProspectusConversion Application, comply as to form the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects with and fairly presents the applicable accounting requirements and related published rules and regulations information required to be shown. The Agent's counsel may rely for purposes of its own opinion on the opinion of Malizia Spidi & Fisch, PC, ▇▇▇▇▇ opinion ▇▇▇▇▇ expressly authorize such reliance. The opinion may be limited to matters governed by the laws of the FRB and any other applicable regulator United States and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards corporate laws of the Public Company Accounting Oversight Board (United States)) consisting State of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-TierNew Jersey. In rendering such opinion, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: such counsel may rely (A) as to matters involving the audited consolidated financial statements and application of laws of any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, jurisdiction other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting recordsUnited States, to the extent such counsel deems proper and specified in such letteropinion, such amounts and/or percentages set forth in upon the Prospectus as the Agent may opinion of counsel reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed acceptable to the Agent, confirming as long as such other opinion indicates that the statements made by Wolf & CompanyAgent may rely on the opinion, P.C. in and (B) as to matters of fact, to the letter extent such counsel deems proper, on certificates of responsible officers of the Roebling Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered by it pursuant to subsection (i) of this Section 8, Agent together with the “specified date” referred to in clause (i) of subsection (h) opinion to be a date specified in rendered hereunder by special counsel to the letter required by this subsection (h) which for purposes Roebling Parties. In rendering such opinion, all statements contained therein "to our knowledge" or "to our attention" or "known to us" mean the knowledge, following reasonable investigation, of the attorneys who have worked on the transactions contemplated herein. The opinion of such letter counsel for the Roebling Parties shall state that it has no reason to believe that the Agent is not be more than three business days prior to the Closing Datereasonably justified in relying thereon.
(l2) At the Closing DateA letter of Malizia Spidi & Fisch, the Holding Company P▇ ▇▇▇▇▇ shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engst▇▇▇ t
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board, or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division Federal Reserve Board or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇, PC, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, P.C. special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, PC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date respective dates as of which information is given in the Prospectus became authorized for final useRegistration Statement, the General Disclosure Package and the Prospectus, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties properties, business or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessbusiness and the conditions set forth in this Section 8 have been satisfied; (iviii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Datethis Section 8; (viv) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (viivi) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division Federal Reserve Board or any other Federal federal or state authority; and (viiivii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as be reasonably be expected to have a wholeMaterial Adverse Effect; (iviii) 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; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the financial condition, results purpose of operations enjoining or business prohibiting the consummation of the Primary PartiesConversion or Offering and no statute, taken as a wholerule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.RSM US LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. RSM US LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2011 2015 and 2012December 31, 2014 and the years ended December 31, 2015 and 2014, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator SEC and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading review (in accordance with Statement of Auditing Standards, AU Section 722, Interim Financial Information) of the latest available consolidated unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-TierTier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated recent developments financial statements information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierTier Holding Company, other than normal deposit fluctuations for the BankMid-Tier Holding Company, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Holding Company and (C) during the period from the date of such letter the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with amounts shown the corresponding period in the latest balance sheet included preceding fiscal year, in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearTier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierTier Holding Company, which are subject to the internal controls of the Mid-TierTier Holding Company, the accounting system and other data prepared by the Mid-TierTier Holding Company, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. RSM US LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (hi) to be a date specified in the letter required by this subsection (hi) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB Federal Reserve Board and any other applicable regulator approving the Conversion Application, the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation Commission that the Commission has declared the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue Federal Reserve Board evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence MHC and good standing of the Mid-TierTier Holding Company; (viiv) a certificate from the Division OCC evidencing the good standing of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston Des Moines evidencing the Bank’s membership therein; (ixvii) a certificate from the Maryland Department Federal Reserve Bank-Des Moines evidencing the Bank’s membership therein; (viii) a certificate from the Iowa Secretary of Assessments and Taxation State evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiix) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authorityauthority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, 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 Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shall have been furnished wit
Appears in 1 contract
Sources: Agency Agreement (WCF Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunderhereunder and the occurrence of the Closing, as to the Shares to be delivered at Reorganization and the Closing Date, Offerings are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offerings and at and as of the Closing DateTime, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Prospectus and Proxy Statement contained in the MHC Notice and Application shall have been approved by the FRB and OTS for mailing prior to the Massachusetts commencement of the Offerings, the Holding Company Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateapproved, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to any of the Primary Parties’ knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ knowledge, threatened by the OTS, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body.
(cb) At the Closing DateTime, the Agent shall have received the received:
(i) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇ ▇▇▇▇▇▇ ▇Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance satisfactory to counsel for Agent, P.C.as set forth in Exhibit C. The opinion may be limited to matters governed by laws of the United States and, with respect to enforceability of this Agreement, laws of the State of New Jersey. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary PartiesParties 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.
(ii) 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 Agent, representatives of the independent registered public accounting firm for the Primary Parties and representatives of Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(i)) 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 at the time it was declared effective by the Commission and as attached hereto of the date of such letter or that the General Disclosure Package as Exhibit C.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 express no comment or opinion with respect to the financial statements, notes to 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).
(diii) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP, special counsel for the Agent, as set forth in form and substance as attached hereto as Exhibit D. Such D; such opinion may rely rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall may reasonably request and upon the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
(iv) A Blue Sky Memorandum from Elias, P.C. relating to the OfferingsMatz, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. addressed to the Primary Parties and Agent relating to the Offerings, P.C. shall state including the Agent may relyAgent’s participation therein. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated the date hereof and addressed to Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP is an independent registered public accounting firm within the meaning of the Code of Ethics of the AICPA, that it is registered with the PCAOB, and that it is, with respect to each of the Primary Parties, an independent certified public accountant within the meaning of, and is not in violation of the auditor independence requirements of, the 1933 Act, the 1933 Act Regulations, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, the PCAOB Regulations and the OTS Regulations; and no information concerning its relationship with or interests in the Primary Parties is required by 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 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the Reorganization 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 the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Board of Directors and Audit Committee of the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Bank or decrease in assets, deposits, loan losses allowances, equity or retained earnings of the Bank or there was any decrease in net income, non-interest income, tax expense, net interest income, net interest income after provision for loan losses or provision for loan losses of the Bank or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Bank; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Bank directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Time, Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP dated the Closing Time, addressed to Agent, confirming the statements made by its letter delivered by it pursuant to Section 10 (c), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Time.
(e) At the Closing Time, counsel to 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 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 DateTime, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing DateTime, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Prospectus, any Material Adverse Effect other than as set forth or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (viv) each of the Primary Parties have has complied in all material respects with all material agreements and have satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date and will comply Time including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the Offering, the Reorganization, the acquisition of all of the shares of the Bank by the Holding Company, the acquisition by the MHC of shares of the Common Stock, the transactions required under the Plan to consummate the Reorganization or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission OTS, the Commission, or any other federal or state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator OTS in approving the ConversionPlan or to enjoin the Reorganization.
(g) None At the Closing Time, the Agent shall receive a letter from RP Financial, LC, dated as of the Closing Time, (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 Reorganization Regulations, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Reorganization 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 Time, none of the Primary Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hi) Prior to and at the Closing DateTime: (i) in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, Material Adverse Effect from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any the Primary Party since Parties, independently or considered as one enterprise, from the latest dates 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 FRB, the Division OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as reasonably be expected to have a wholeMaterial 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as reasonably be expected to have a wholeMaterial Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or “blue sky sky” laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing DateTime, the Agent shall receive: receive (i) a copy of the MHC Notice and Application and a copy of the letter from the FRB OTS authorizing the use of the Prospectus and approving the Holding Company MHC Notice and Application; , (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared declaring the Registration Statement effective; , (iii) a copy of a certificate of existence for the Bank, (iv) certificate certificates or other writings from the Massachusetts Department of Revenue appropriate federal authority in form and substance reasonably satisfactory to Agent evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engt
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary PFS Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary PFS Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary PFS Parties shall have conducted the Conversion and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OCC, the Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve, or with the Agent’s consent at a later time and daterespectively, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued by the Commission under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the PFS Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the PFS Parties’ knowledge, threatened by the OCC, the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authoritycontribution, or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by PFS Bancorp.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(d2) At the Closing Date, the Agent shall have received the favorable opinionThe letter, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating PC, in form and substance satisfactory to the OfferingsAgent and counsel for the Agent, including Agent’s participation therein, shall have been furnished prior to the mailing effect as set forth in the last paragraph of Exhibit A.
(d) Concurrently with the Prospectus to execution of this Agreement, the Holding Company with Agent shall receive a copy thereof addressed to Agent or upon which ▇▇▇▇ letter from ▇▇▇▇▇▇ ▇▇LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ & LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇▇ LLP, P.C. shall state the consolidated financial statements of Peru Federal included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review of the latest available unaudited consolidated interim financial statements prepared by Peru Federal, a reading of the minutes of the meetings of the Boards of Directors of the PFS Parties and committees thereof and consultations with officers of the PFS Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings, non-performing loans or special mention loans, foreclosed assets, or decrease in deposits, total assets, total loans, the allowance for loan losses, or equity of Peru Federal, or there was any decrease in total interest income, net interest income, net interest income after provision for loan losses, income (loss) before income taxes or in total net income (loss) of Peru Federal for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of Peru Federal, which are subject to the internal controls of the accounting system of Peru Federal and other data prepared by Peru Federal from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).2
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ LLP dated the Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of obtaining or confirming exemptionsthis Section 11, qualifications or the registration “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.3
(f) At the Closing Date, counsel to the Agent shall have been furnished with such documents 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 Shares under applicable state securities lawand the contribution of the Foundation 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselPFS Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng;
Appears in 1 contract
Sources: Agency Agreement (PFS Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, (1) to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, (2) to the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and (3) to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB Federal Reserve Board and any other applicable regulator), ) and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board, the OCC or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, and the Conversion Application, the Holding Company Application and the Conversion OCC Application shall have been approved by the FRB Federal Reserve Board and the Massachusetts Application shall have been approved by the Division OCC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRBFederal Reserve Board, the Division OCC or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.PC, special counsel for the Primary Parties, which shall also state that V▇▇▇▇▇ Price P.C. may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇V▇▇▇▇▇ LLPPrice P.C., special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of reasonably acceptable to the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c)Agent.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC relating to the OfferingsOffering, including the Agent’s participation therein, shall have been furnished to the Holding Company prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to the Agent or upon which ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date respective dates as of which information is given in the Prospectus became authorized for final useRegistration Statement, the General Disclosure Package and the Prospectus, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties properties, business or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessbusiness and the conditions set forth in this Section 8 have been satisfied; (iviii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Datethis Section 8; (viv) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (viivi) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBFederal Reserve Board, the Division OCC or any other Federal federal or state authority; and (viiivii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve Board, the Division OCC or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and the 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 Statement, the General Disclosure Package and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as reasonably be expected to have a wholeMaterial Adverse Effect; (iviii) 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; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the financial condition, results purpose of operations enjoining or business prohibiting the consummation of the Primary PartiesConversion or the Offering, taken as a wholeand no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or the Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf B▇▇▇▇▇ & Company, P.C.V▇▇▇▇▇▇ Co., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf B▇▇▇▇▇ & Company, P.C. Veselka Co. is a firm of an independent registered public accountants accounting firm within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that that, in its opinion opinion, the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2011 2015 and 20122014 and for the year ended December 31, 2015 and the six months ended December 31, 2014, covered by their opinion included in the Registration Statement and the Prospectus, and any other more recent unaudited financial statements included in the Prospectusreview of the three months ended March 31, 2016 and 2015, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator Commission and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the latest available consolidated unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-TierTier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus; or (B) during the period from the date of the latest consolidated recent developments financial statements information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Registration Statement and the Prospectus, there was any increase in long-term debt of the Mid-TierTier Holding Company, other than normal deposit fluctuations for the BankMid-Tier Holding Company, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Holding Company and (C) during the period from the date of such letter the “Recent Developments” financial information included in the Registration Statement and the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Registration Statement and the Prospectus, there were any decreases, as compared with amounts shown the corresponding period in the latest balance sheet included preceding fiscal year, in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearTier Holding Company; and (iii) stating that, in addition to the audit referred to in their its opinion included in the Registration Statement and the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have it has compared with the general accounting records of the Mid-TierTier Holding Company, which are subject to the internal controls of the Mid-TierTier Holding Company, the accounting system and other data prepared by the Mid-TierTier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Registration Statement, the General Disclosure Package and the Prospectus as the Agent may reasonably request; and they have it has found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by B▇▇▇▇▇ & V▇▇▇▇▇▇ Co. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (j) to be a date specified in the letter required by this subsection (j) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Holding Company shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated 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 prepared by such firm 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 Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB Federal Reserve Board, the OCC and any other applicable regulator approving the Conversion Application, the Holding Company ApplicationApplication and the OCC Application and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation Commission that the Commission has declared the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue Federal Reserve Board evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence MHC and good standing of the Mid-TierTier Holding Company; (viiv) a certificate from the Division OCC evidencing the good standing of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston Dallas evidencing the Bank’s membership therein; (ixvii) a certificate from the Federal Reserve Bank-Dallas evidencing the Bank’s membership therein; (viii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiix) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; : (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authorityauthority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities that have resulted in the declaration, on or afte
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary MW Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary MW Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary MW Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB ODFI, the FDIC and any other applicable regulatorthe FRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the ODFI, the FDIC and the FRB or any other applicable regulatorto the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Holding Company Application and the Conversion Application shall have been approved by the FRB ODFI, the FDIC, and the Massachusetts Holding Company Application shall have been approved by the Division FRB not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary MW Parties’ knowledge, threatened by the CommissionSEC, the FRBODFI, the Division FDIC, the FRB or any other state authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Member’s Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇, special counsel for the Holding Company and the Bank, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance with respect to such matters as attached hereto as Exhibit D. the Agent may reasonably require. Such opinion may rely upon certificates of officers and directors of the Primary MW Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary MW Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement and Prospectus and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement and, Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary MW Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary MW Parties independently, or of the Primary MW Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary MW Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary MW Parties, threatened by the Commission SEC or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary MW Parties, threatened by the FRBSEC, the Division ODFI, the FDIC, the FRB or any other Federal or state authority; and (viii) to the knowledge of the Primary MW Parties, no person has sought to obtain review of the final action of the FRB, ODFI or the Division or any other applicable regulator FDIC approving the ConversionPlan or the FRB approving the Holding Company Application.
(g) None of the Primary MW Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Parties, MW Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary MW Party since the latest dates as of which the financial condition of the Primary MW Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary MW Parties shall have received from the FRBODFI, the Division FDIC or the FDIC FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, MW Parties taken as a whole; (iv) none of the Primary MW Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary MW Parties, threatened against the any of the Primary MW Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as have a wholeMaterial Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary MW Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the SEC and the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31June 30, 2011 2014 and 20122013, and for each of the years in the two-year period ended June 30, 2014, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActSEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary MW Parties and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, 1933 Act and related published rules and regulations of the Division SEC and accounting principles generally accepted in the FDIC and GAAP United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierFHLB borrowings, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan lossestotal deposits, total deposits or total equity of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income (loss) or net interest income or net interest income after provision for loan lossesincome, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-TierBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii)(B) of subsection (hi) to be a date specified in the letter required by this subsection (hj) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary MW Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the ODFI and the FDIC approving the Conversion Application, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iiiii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared SEC declaring the Registration Statement effective, if available; (iv) a certificate of good standing from the Massachusetts Department State of Revenue Maryland evidencing the valid existence good standing of the MHCHolding Company; (v) a certificate of good standing from the Massachusetts Department ODFI and/or the Secretary of Revenue evidencing the valid existence and good standing State of the Mid-Tier; (vi) a certificate from the Division Ohio, as applicable, evidencing the good standing of the Bank; (viivi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivii) a certificate from the FHLB-Boston Cincinnati evidencing the Bank’s membership therein; and (ixviii) a certificate from the Maryland Department certified copy of Assessments and Taxation evidencing the good standing each of the Holding Company; (x) evidence ’s and the Bank’s Articles of approval of the Massachusetts Application by the Division; Incorporation, Constitution and (xi) such other documents and certificates Bylaws, as the Agent may reasonably requestapplicable.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or quotations halted generally on the Nasdaq Stock Market or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, market or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges the NYSE or the Nasdaq Stock Market or in the over-the-counter market or by order of the Commission SEC, FINRA or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engor
Appears in 1 contract
Sources: Agency Agreement (MW Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OTS, the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, OTS; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the CommissionOTS, the FRB, the Division SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.P.C, special counsel for the Primary PartiesCompany, the MHC, the Mid-Tier Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Company has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Maryland; the MHC has been duly incorporated and is validly existing as a federal mutual holding company under the laws of the United States of America; the Mid-Tier Holding Company has been duly incorporated and is validly existing as a corporation under the laws of the United States of America.
(ii) Each of the Company, the MHC and the Mid-Tier Holding Company has the corporate power and authority to own, lease and operate their respective properties and to conduct their business as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus.
(iii) The Bank is a validly existing Illinois-chartered savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus. Upon completion of the Conversion in accordance with the Plan, all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Chicago. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law (exclusive of any opt in provisions) , and to such counsel’s knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion and Offering—Effects of Conversion on Depositors, Borrowers and Members—Effect on Liquidation Rights” and “-Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued upon incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Maryland law or regulation, the Agent shall have received Company’s Articles of Incorporation or pursuant to OTS regulations (except to the favorable opinionextent that subscription rights and priorities thereto exist pursuant to the Plan), dated as and the terms and provisions of the Closing Date and addressed Common Shares conform in all material respects to the Agent and for its benefit, description thereof contained in the Prospectus. The form of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for certificate used to evidence the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates Common Shares complies with the requirements of officers and directors Maryland General Corporation Law. Upon the issuance of the Primary Parties delivered pursuant hereto or Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as such counsel shall reasonably request may be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, the MHC, the Mid-Tier Holding Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, the MHC, the Mid-Tier Holding Company and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC, the Mid-Tier Holding Company and the Bank, enforceable against the Company, the MHC, the Mid-Tier Holding Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of ▇▇▇▇ delivered pursuant to Section 8(cequitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(evii) A The Conversion Application and Holding Company Application have been approved by OTS and the Prospectus and Members’ Proxy Statement have been declared effective and cleared by the OTS, no action has been taken, and to such counsel’s knowledge, is pending, or is threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan has been duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Bank, approved by the required vote of the MHC’s members and approved by the requisite vote of the stockholders of the Mid-Tier Holding Company.
(ix) Subject to the satisfaction of the conditions to the OTS’ approval of the Conversion and any additional requirements imposed by the Illinois Department of Financial & Professional Regulation (“IDFPR”), no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, except as may be required under the securities or blue sky memorandum from laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433, and no stop order proceedings with respect thereto have been instituted or, to the knowledge of such counsel, are pending or threatened under the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(fxi) At the Closing Datetime the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselConversion Application, dated as of such Closing Date, to the effect that: (i) they have carefully examined including the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement complied as to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied form in all material respects with the requirements of the Conversion Regulations, the 1934 Act Regulations (other than the Members’ Proxy Statement), federal law and all agreements applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the compliance as to form of the Conversion Application, we have satisfied all conditions on their part to be performed assumed that the statements made therein are correct and complete.
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or satisfied at supplemented, if so amended or prior supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the Closing Date financial statements, the notes thereto, and will comply other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness requirements of the Registration Statement has been initiated or1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the knowledge requirements of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion1933 Act, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB1933 Act Regulations, the Division or any other Federal or state authority; Conversion Regulations and (viii) applicable federal law, it being understood, however, that in passing upon the compliance as to the knowledge form of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, we have assumed that the statements made therein are correct 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectuscomplete.
(hxiii) Prior to and at the Closing Date: (i) in the reasonable opinion of the AgentTo such counsel’s knowledge, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 outstanding indebtedness; (v) no action, suit or proceeding, proceeding at law or in equity is pending or threatened in writing against or affecting any of the Company, the MHC, the Mid-Tier Holding Company or the Bank or any of their properties before or by any federal court or state governmental official, commission, board or other administrative agency, not disclosed in the Prospectusauthority or body, shall be pending oror any arbitrator, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect have a material adverse effect on the financial condition, results of operations or business ability of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this AgreementCompany, the Agent shall receive a letter from Wolf & CompanyMHC, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered Holding Company or the Bank to consummate the transactions contemplated by their opinion included this Agreement or which is required to be disclosed in the ProspectusRegistration Statement or the Prospectus and is not so disclosed.
(xiv) To such counsel’s knowledge, and any there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other more recent unaudited financial statements included instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, comply as to form the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects with and fairly presents the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 information required to be in agreement therewith (subject to rounding)shown.
(jxv) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the applicable requirements of Title 12 Conversion Regulations; and, to such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the Code of Federal Regulations, and (iii) further stating that its opinion final action of the aggregate pro forma market value of OTS approving the Plan, the Conversion Application, the Holding Company including Application or the Bank, as most recently updated, remains in effectProspectus.
(mxvi) At The execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (a), to such counsel’s knowledge, conflict with or prior 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 Company, the MHC, the Mid-Tier Holding Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier Holding Company or the Bank is a party that is filed as an exhibit to the Closing DateRegistration Statement (other than the establishment of the liquidation accounts), (b) result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the MHC, the Agent Mid-Tier Holding Company or the Bank or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of FINRA and/or Nasdaq Capital Market need be rendered) or order or court order, writ, injunction or decree.
(xvii) The information in the Prospectus under the captions “Our Dividend Policy” “Supervision and Regulation,” “Taxation,” “The Conversion and Offering,” “Restrictions on Acquisition of Jacksonville Bancorp - Maryland” and “Description of Capital Stock of Jacksonville Bancorp - Maryland Following The Conversion” 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 correct in all material respects. The description of the Conversion process in the Prospectus under the caption “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 fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “The Conversion and Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the opinions rendered by them to the Company, the MHC, the Mid-Tier Holding Company and the Bank with respect to such matters. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Company, the MHC, the Mid-Tier Holding Company and the Bank and certificates of public officials. Such counsel’s opinion need refer only to matters of federal law, the laws of the State of Illinois and the State of Maryland and, with respect to enforceability of this Agreement, New York law. For purposes of such opinion, no proceedings shall receive: (i) be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of either of the Company, the MHC, the Mid-Tier Holding Company or the Bank shall have received a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence such proceedings, order, stop order or action. In addition, such opinion may be limited to present statutes, regulations and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engjud
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law Conversion Regulations (except to the extent waived or otherwise approved by the FRB Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Federal Reserve Board, or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division Federal Reserve Board or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇, PC, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, P.C. special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, PC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date respective dates as of which information is given in the Prospectus became authorized for final useRegistration Statement, the General Disclosure Package and the Prospectus, no event has occurred which that should have been set forth in an amendment or supplement to the Prospectus which that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties properties, business or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of businessbusiness and the conditions set forth in this Section 8 have been satisfied; (iviii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations to be satisfied by them after the Closing Datethis Section 8; (viv) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (viivi) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division Federal Reserve Board or any other Federal federal or state authority; and (viiivii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Parties considered as one enterprise, from that and as of the latest dates date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or and which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as be reasonably be expected to have a wholeMaterial Adverse Effect; (iviii) 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; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the financial condition, results purpose of operations enjoining or business prohibiting the consummation of the Primary PartiesConversion or Offering and no statute, taken as a wholerule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.RSM US LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. RSM US LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of March 31, 2016, December 31, 2011 2015 and 2012December 31, 2014 and the three months ended March 31, 2016 and the years ended December 31, 2015 and 2014, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator SEC and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the latest available consolidated unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-TierTier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRBCommission, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated recent developments financial statements information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierTier Holding Company, other than normal deposit fluctuations for the BankMid-Tier Holding Company, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease decreases in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at Holding Company and (C) during the period from the date of such letter the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with amounts shown the corresponding period in the latest balance sheet included preceding fiscal year, in the Prospectus; or (D) there was any decrease in net income or total interest income or income, net interest income or income, net interest income after provision for loan losses, non-interest income before income tax expense or increase in provision for loan losses or non-interest expense net income of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding yearTier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierTier Holding Company, which are subject to the internal controls of the Mid-TierTier Holding Company, the accounting system and other data prepared by the Mid-TierTier Holding Company, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. RSM US LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (hi) to be a date specified in the letter required by this subsection (hi) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB Federal Reserve Board and any other applicable regulator approving the Conversion Application, the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a letter the order from the FRB approving the Conversion Application; (iii) confirmation Commission that the Commission has declared the Registration Statement effective; (iviii) certificate certificates from the Massachusetts Department of Revenue Federal Reserve Board evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence MHC and good standing of the Mid-TierTier Holding Company; (viiv) a certificate from the Division OCC evidencing the good standing of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivi) a certificate from the FHLB-Boston Des Moines evidencing the Bank’s membership therein; (ixvii) a certificate from the Maryland Department Federal Reserve Bank-Des Moines evidencing the Bank’s membership therein; (viii) a certificate from the Iowa Secretary of Assessments and Taxation State evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xiix) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authorityauthority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engengagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, 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 Registration Statement and the Prospectus.
(o) At or prior to the Closing Date,
Appears in 1 contract
Sources: Agency Agreement (WCF Bancorp, Inc.)
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Association herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or OTS, the FDIC, the Commission and any other applicable regulatorstate securities agency.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application approved by the OTS, and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ best of the Company's and the Association's knowledge, threatened by the Commission, the FRB, the Division OTS or any other Federal federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its their benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.Washington, special D.C., counsel for the Primary PartiesCompany and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation in good standing under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Delaware.
(ii) since The Company has full corporate power and authority to own its properties and to conduct its business as described in the date Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is qualified to do business as a foreign corporation in the Prospectus became authorized for final useState of Ohio and in each other jurisdiction in which such qualification is required, no event has occurred which should except where the failure to so qualify would not have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any a material adverse change in effect upon the financial condition, financial or otherwise, or in the earnings, capital, properties results of operations or business of the Primary Parties Company and the conditions Savings Bank, taken as a whole.
(iv) Upon consummation of the Conversion the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in this Section 8 the Prospectus under "Capitalization," and no shares of Common Stock have been satisfied; issued and will remain outstanding prior to the Closing Date.
(iiiv) The Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge and information, otherwise.
(vii) The Association has been at all times since the respective dates date hereof and prior to the Closing Date organized, and is validly existing, under the laws of the United States of America as a federally chartered savings and loan association of which information is given mutual form, and, at the Closing Date , has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings and loan association of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus; and the Association is qualified to do business as a foreign corporation in each jurisdiction in which such qualification is required, there has been no except where the failure to so qualify would not have a material adverse change in effect upon the financial condition, financial or otherwise, or in the earnings, capital, properties results of operations or business of the Primary Parties independentlyCompany and the Association , or taken as a whole.
(viii) The Association is a member of the Primary Parties considered as one enterpriseFHLB - Cincinnati and the deposit accounts of the Association are insured by the FDIC up to the applicable limits.
(ix) Upon consummation of the Conversion, whether all of the issued and outstanding capital stock of the Association will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or not arising legal or equitable claim.
(x) The OTS has approved the Holding Company Application and the Conversion Application; such approvals remain in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same full force and effect as though expressly made at and as no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Closing DateSavings Bank's issued and outstanding capital stock; (v) the Primary Parties have complied Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all agreements and have satisfied other applicable requirements of the OTS, and, to best of such counsel's knowledge, include all conditions on their part documents required to be performed filed as exhibits thereto, excluding the Prospectus and any related marketing materials filed as a part of the Holding Company Application or satisfied at or prior the Conversion Application as to which no opinion need be given; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Association to be issued pursuant to the Closing Date Plan.
(xi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company and the Association, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and the Association, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) to the best of such counsel's knowledge, will comply not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in all the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Association pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Association is subject that, individually or in the aggregate, would have a material respects with all obligations adverse effect on the financial condition, results of operations or business of the Company and the Association, taken as a whole, and (C) will not result in any violation of the provisions of the articles or certificate of incorporation, charter, as the case may be, or bylaws of the Company or the Association.
(xii) The Prospectus has been duly authorized by the OTS for final use pursuant to be satisfied the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, threatened, by them after the Closing Date; OTS to revoke such authorization.
(vixiii) The Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor that require notice initiated or, to the knowledge best of the Primary Partiessuch counsel's knowledge, threatened by the Commission Commission.
(xiv) No further approval, authorization, consent or other order of any state authority; (vii) no order suspending public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the Offerings securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xv) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory and regulatory requirements.
(xvii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company or the use Association that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or the Association is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xviii) The information in the Prospectus describing the liquidation account under the captions "The Conversion - Effects of Conversion - Effect on Liquidation Rights," and the information under "Risk Factors - Possible Adverse Income Tax Consequences of the Prospectus Distribution of Subscription Rights," "Regulation," "The Conversion," "Restrictions on Acquisition of the Company and the Association," "Description of Capital Stock of the Company" and "Description of Capital Stock of the Association" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, is complete in all material respects.
(xix) To the best of such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto.
(xx) The Plan has been duly authorized by the Boards of Directors of the Company and the Association; the Association's charter has been amended, effective upon consummation of the Conversion and the filing of such amended charter with the OTS, to authorize the issuance of permanent capital stock; to the best of such counsel's knowledge, the Company and the Association have conducted the Conversion in all material respects in accordance with applicable requirements of the Plan, the Conversion Regulations, and all other applicable regulations, decisions and orders thereunder, including all material applicable terms, conditions, requirements and conditions precedent to the Conversion imposed upon the Company or the Association by the OTS and no order, to the best of such counsel's knowledge, has been issued and by the OTS to suspend the Offerings and, no proceedings action for that such purpose are pending has been instituted or, to the best of such counsel's knowledge of the Primary Parties, threatened by the FRBOTS; and, the Division or any other Federal or state authority; and (viii) to the knowledge best of the Primary Partiessuch counsel's knowledge, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator OTS in approving the ConversionPlan.
(gxxi) None To the best of such counsel's knowledge and information, each of the Primary Parties shall Company and the Association have sustainedobtained all licenses, since permits and other governmental approvals and authorizations currently required for the date conduct of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than their respective businesses as set forth described in the Registration Statement and the Prospectus, and since except for such licenses, permits, approvals or authorizations the respective dates as failure of which information is given to have would not result in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no a material adverse change in the financial condition, results of operations or the business of the Primary Parties, considered as one enterprise, from that as of Company and the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary PartiesAssociation, taken as a whole; (iv) none , and all such licenses, permits and other governmental authorizations are in full force and effect, and each of the Primary Parties shall have been Company and the Association is in all material respects complying therewith.
(xxii) Neither the Company nor the Association is in violation of its certificate or articles of incorporation or charter, as the case may be, upon consummation of the Conversion nor, to the best of such counsel's knowledge, in default (nor shall an has any event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision in the performance or observance of any agreement obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument relating to any outstanding indebtedness; (v) no action, suit which the Company or proceeding, at law or in equity or before the Association is a party or by any federal which the Company, the Association or state commission, board the Subsidiary or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding respective property may be bound in any respect that would materially and adversely affect have a material adverse effect upon the financial condition, results of operations or business of the Primary PartiesCompany and the Association, taken as a whole; . In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Company and (vi) the Shares Association and certificates of public officials. All references "to such counsel's knowledge" in such opinion shall refer to the actual and conscious awareness of facts or other information of the individual attorneys who have been actively involved in the transactions contemplated by this Agreement or the preparation of such opinion . For purposes of such opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company or the Association, or their counsel, shall have been qualified received a copy of such proceedings, order, stop order or registered for offering action. Such counsel may assume that any agreement is the valid and sale binding obligation of any parties to such agreement other than the Company or exempted therefrom under the securities or blue sky laws Association. In addition, such counsel shall provide a letter stating that during the preparation of the jurisdictions as Registration Statement, Conversion Application and the Agent shall have reasonably requested Prospectus, such counsel participated in conferences with certain officers and as agreed to by other representatives of the Primary Parties.
(i) Concurrently with Association and the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as representatives of the date hereof and addressed Agent, counsel to the Agent: (i) confirming that Wolf & Company, P.C. is a firm representatives of the independent registered public accountants within for the applicable rules Association and the Company at which the contents of the Public Company Accounting Oversight Board (United States) Registration Statement, the Conversion Application and stating in effect that in its opinion the consolidated financial statements Prospectus and related notes matters were discussed and, although they are not passing upon and do not assume the responsibility for the accuracy, completeness or fairness of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included statements contained in the Registration Statement, the Conversion Application and Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures the foregoing (but not an audit in accordance with standards relying as to factual matters on certificates of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared officers and other factual representations by the Mid-Tier, a reading of Association and the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting mattersCompany), nothing came has come to their such counsel's attention which that caused them to believe that: (A) that the audited consolidated financial statements and any unaudited interim financial statements included in Registration Statement at the Prospectus are not in conformity with time it was declared effective by the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the BankSEC, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; of its date and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance as of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the Agent statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel shall receive a letter dated the Closing Date, addressed express no comment or opinion with respect to the Agentfinancial statements, confirming the statements made by Wolf & Companyschedules and other financial information and statistical and stock valuation data included, P.C. or statistical methodology employed, in the letter delivered by it pursuant to subsection (i) of this Section 8Registration Statement, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engAp
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank, herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Division Requirements and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OTS or any other applicable regulatorthe Division.
(b) The Registration Statement shall have been declared effective by the Commission, the Form AC and Holding Company Application and the Conversion Application shall have been approved by the FRB OTS and the Massachusetts Division Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s or the Bank’s knowledge, threatened by the Commission, the FRBOTS, the FDIC, the Division or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesCompany and the Bank, in form and substance as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, including the Prospectus (as amended or supplemented) and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus (as amended or supplemented) did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties Company or the Bank and the conditions set forth in this Section 8 7 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no Material Adverse Effect of any kind or nature including, without limitation, no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties Company or the Bank independently, or of the Primary Parties Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have Company has complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary PartiesCompany or the Bank, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary PartiesCompany or the Bank, threatened by the FRBOTS, the Division or any other Federal or state authority; and (viii) to the best knowledge of the Primary PartiesCompany or the Bank, no person has sought to obtain review of the final action of the FRB, OTS or the Division or any other applicable regulator approving the Conversion.
(gf) None of Neither the Primary Parties Company nor the Bank shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hg) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Company and the Bank considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since neither the latest dates as of which Company nor 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 Bank shall have received from the FRBOTS, the Division FDIC or the FDIC Division any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Company and the Bank taken as a whole; (iviii) none of neither the Primary Parties Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary PartiesCompany or the Bank, threatened against the any of Company or the Primary Parties Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Company and the Bank taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky Blue Sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany and the Bank.
(ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: :
(i) confirming that Wolf & Company▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Bank as of December 31June 30, 2011 2009 and 20122008, and for each of the years in the two-year period ended June 30, 2009, and covered by their opinion included in the Prospectustherein, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator OTS and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier Bank prepared by the Mid-TierBank, a reading of the minutes of the meetings of the Boards Board of Directors/Trustees of each Directors of the Primary Parties Bank and consultations with officers of the Mid-Tier Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC OTS and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt borrowings of the Mid-TierBank, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity net assets of the Mid-Tier Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-TierBank, which are subject to the internal controls of the Mid-TierBank, the accounting system and other data prepared by the Mid-TierBank, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(ki) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (ig) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lj) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter letters from the FRB OTS approving the Form AC, the Holding Company ApplicationApplication and authorizing the use of the Prospectus; (ii) a copy of a the letter from the FRB Division approving the Conversion ApplicationDivision Application and authorizing use of the Prospectus; (iii) confirmation that a copy of the order from the Commission has declared declaring the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing valid existence of the Bank; (viiv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; and (viiivi) a certificate from the FHLB-Boston Cincinnati evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq NASDAQ Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or Ohio chartered financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or banks, federal savings and loan associations or Ohio chartered financial institutions declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iv) a material decline in the price of equity or debt securities if the effect of such decline, in the Agent’s reasonable judgment, makes 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 Registration Statement and the Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Bank in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
(o) Prior to the Closing, the Bank shall not have received from the OTS, FDIC or the Division any direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Brookline Parties herein contained are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct correct, the condition that the Brookline Parties shall have performed, in all material respects, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and Holding Company Application and the Conversion Application shall have been approved by the FRB OTS and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Brookline Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Brookline Parties’ knowledge, threatened by the OTS, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special and/or local counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed acceptable to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as attached hereto described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federally chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally chartered stock savings bank, with full power and authority to own its properties and to conduct its business as Exhibit D. Such 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 federal law and the rules, regulations and practices of the FDIC and the OTS; 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. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier 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 the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank comply therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(v) 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 shares to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, certificate 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.
(vi) 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 Brookline Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Brookline Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) 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.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) 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 rules and regulations promulgated thereunder.
(xiii) 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 Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on Acquisition of Brookline Bancorp, Inc.," "Description of Capital Stock of Brookline Bancorp, Inc.," and "The Conversion," 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.
(xv) None of the Brookline Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) None of the Brookline Parties is in violation of its Certificate of Incorporation or its charter, as the case may be, or its bylaws or, to the best of 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 Brookline 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 Brookline Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel's knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement or otherwise known by such counsel which should have otherwise been filed as an exhibit to the Registration Statement, which violation would have a Material Adverse Effect. The Agent's counsel may rely upon certificates for purposes of officers and directors of its own opinion on the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion opinion(s) of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ [and/or local counsel], whose opinion(s) shall expressly authorize such reliance. The opinion may be limited to matters governed by the laws of the United States and the corporate laws of the State of Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Brookline 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 Brookline Parties. In rendering such opinion, all statements contained therein "to our knowledge" or "to our attention" or "known to us" means the actual knowledge, following reasonable investigation, of the attorneys who have worked on the transactions contemplated herein and, in the case of the opinion rendered in Section 10(b)(1)(xiii), including a docket search in the counties in which the Brookline Parties are located. The opinion of such counsel for the Brookline Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon.
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall also state that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Brookline Parties, counsel to the Agent, representatives of the independent public accountants for the Brookline Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter, 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 statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus, the appraisal valuation or the business plan).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇, P.C. ▇▇▇▇ & ▇▇▇▇▇ 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 Brookline Parties delivered pursuant hereto or as such counsel may reasonably request.
(4) A Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ relating to the Offeringsoffering, including Agent’s 's participation therein, shall have been and should be furnished prior to the mailing of the Prospectus to the Holding Company Agent with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. ▇ shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares common stock under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C.▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: , such letter (i) confirming that Wolf & Company, P.C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules meaning of the Public Company Accounting Oversight Board (United States) 1933 Act and the regulations promulgated thereunder, and stating in effect that in its ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP's opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion Holding Company included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related published rules and regulations of the FRB and any other applicable regulator and the 1933 ActCommission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engconsistin
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary PFS Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary PFS Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary PFS Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OCC, the Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve, or with the Agent’s consent at a later time and daterespectively, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued by the Commission under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the PFS Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the PFS Parties’ knowledge, threatened by the OCC, the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale, or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by PFS Bancorp.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A; and
(2) The letter, dated as of the Closing Date, of L▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as set forth in the last paragraph of Exhibit C.A.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from W▇▇▇▇▇ LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that W▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of W▇▇▇▇▇ LLP, the consolidated financial statements of Peru Federal included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (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 review of the latest available unaudited consolidated interim financial statements prepared by Peru Federal, a reading of the minutes of the meetings of the Boards of Directors of the PFS Parties and committees thereof and consultations with officers of the PFS Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings, non-performing loans or special mention loans, foreclosed assets, or decrease in deposits, total assets, total loans, the allowance for loan losses, or equity of Peru Federal, or there was any decrease in total interest income, net interest income, net interest income after provision for loan losses, income (loss) before income taxes or in total net income (loss) of Peru Federal for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of Peru Federal, which are subject to the internal controls of the accounting system of Peru Federal and other data prepared by Peru Federal from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇receive a letter from W▇▇▇▇▇ LLPLLP dated the Closing Date, special counsel for addressed to the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to subsection (d) of this Section 8(c)11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselPFS Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary PFS Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions on their part contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission OCC or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, OCC or the Division Federal Reserve in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from F▇▇▇▇▇▇ Financial Advisors, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the PFS Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the PFS Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary PFS Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of the Primary Parties, considered as one enterprise, Peru Federal from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the letter from the OCC approving the Conversion Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Chicago evidencing Peru Federal’s membership therein, (v) a certificate from the FDIC evidencing Peru Federal’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing Date, none of the Primary PFS Parties shall will have received from the FRBFederal Reserve, the Division OCC, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent only if such is not considered confidential supervisory information as defined in 12 C.F.R. §309.5(g)(8)).
(n) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a PFS Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such PFS Party, to the Agent as to the statements made therein.
(o) or which materially and adversely would affect A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ PC relating to the financial conditionOffering, results of operations or business of the Primary Partiesincluding Agent’s participation therein, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days furnished prior to the date mailing of the Prospectus, except as has been described in the Prospectusto PFS Bancorp with a copy thereof addressed to Agent or upon which L▇▇▇ ▇▇▇▇▇▇, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as PC shall state the Agent may reasonably request; and they have found such amounts and percentages rely. The blue sky memorandum will relate to be in agreement therewith (subject to rounding)the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(kp) At the Closing Date, the Agent Shares shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which have been approved for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally quotation on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock OTCQB Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng.
Appears in 1 contract
Sources: Agency Agreement (PFS Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary SSB Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary SSB Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary SSB Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Pennsylvania Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Code and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB Federal Reserve, the FDIC, the PA Department and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB PA Department, the FDIC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve, or with the Agent’s consent at a later time and dateas applicable, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the SSB Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the SSB Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the SSB Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the SSB Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C. dated the date hereof and addressed to the Agent, such letter (i) confirming that Wolf & Company, P.C. is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of Wolf & Company, P.C., 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 and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the SSB Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included 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) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets or net worth, or there was any decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), 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 SSB Parties from 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).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from Wolf & Company, P.C. dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of confirming the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ statements made by its letter delivered pursuant to Section 8(c11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(ef) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇At the Closing Date, P.C. relating counsel to the Offerings, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas 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 Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselSSB Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary SSB Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve, the Division FDIC or any other applicable regulator the PA Department in approving the ConversionApplications or to enjoin the Reorganization.
(gh) 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 SSB Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Pennsylvania Banking Code, and
(iii) further stating that its opinion of the aggregate pro forma market value of the SSB Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary SSB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesSSB Parties independently, considered or the SSB Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated therein; prior to the Closing Date, the Agent shall receive (i) a copy of the Pennsylvania Application and a copy of the letter or order from the PA Department approving the Pennsylvania Application, (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in order from the ProspectusCommission declaring the Registration Statement effective, other than transactions referred to or contemplated therein; (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a copy of the letters or orders from the FDIC approving the FDIC Applications, (v) a certificate from the FHLB-Pittsburgh evidencing the Bank’s membership therein, (vi) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vii) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing Date, none of the Primary SSB Parties shall will have received from the FRBFederal Reserve, the Division FDIC, or the FDIC PA Department any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the date hereof, there shall not have occurred any Agent and to counsel for the Agent. Any certificate signed by an officer of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges Company or the Nasdaq Stock Market Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by order of the Commission Company or any other governmental authority; (ii) a general moratorium on the operations of commercial banksBank, or federal savings and loan associations or a general moratorium on as the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) case may be, to the engAgent as to the statements made therein.
Appears in 1 contract
Sources: Agency Agreement (SSB Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations obligation of the Agent hereunderto consummate the transactions contemplated by this Agreement, including the obligation to execute and deliver each of the Operative Agreements to which it is a party as to of the Shares to be delivered at the Initial Closing Date, are subject, is subject to (i) the extent not waived in writing by accuracy and correctness on the Agent, to Initial Closing Date of the condition that all representations and warranties of the Primary Parties herein areother parties hereto contained herein, at (ii) the accuracy and as correctness on the Initial Closing Date of the commencement representations and warranties of the Offerings other parties hereto contained in any other Operative Agreement or certificate delivered pursuant hereto or thereto, (iii) the performance by the other parties hereto of their respective agreements contained herein and at and as of in the other Operative Agreements, in each case to be performed by them on or prior to the Initial Closing Date, true and correct in all material respects(iv) the satisfaction, or waiver by the condition that the Primary Parties shall have performed Agent, of all of its obligations hereunder to be performed the following conditions on or before such dates, and prior to the following further conditionsInitial Closing Date:
(a) At Each of the Operative Agreements to be entered into as of the Initial Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement Date shall have been declared effective duly authorized, executed and delivered by the Commissionparties thereto, the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later other than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the FRB, the Division or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect, and no Default or Event of Default shall exist thereunder (both before and after giving effect on to the Closing Date.
(k) At transactions contemplated by the Closing DateOperative Agreements), and the Agent shall receive have received a letter dated fully executed copy of each of the Closing DateOperative Agreements (including the Notes). The Operative Agreements (or memoranda thereof), addressed any supplements thereto and any financing statements and fixture filings in connection therewith required under the Uniform Commercial Code shall have been filed or shall be promptly filed, if necessary, in such manner as to enable the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant Lessor's counsel to subsection (i) of this Section 8, the “specified date” render its opinion referred to in clause (iSECTION 6.2(F) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.hereof;
(lb) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent The satisfaction of each of the Primary Parties and is experienced and expert conditions set forth in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(bSECTIONS 6.1(B), (iiC), (E), (F) stating in effect that AND (H) and SECTIONS 6.2(D), (E) AND (F) hereof; and
(c) In the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its reasonable opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing DateAgent and its counsel, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application transactions contemplated by the Division; Operative Agreements do not and (xi) such other documents will not violate any material Legal Requirements and certificates as do not and will not subject the Agent may reasonably requestto any materially adverse regulatory prohibitions or constraints.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Blue Hills Parties herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Blue Hills Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Blue Hills Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB RegulationsBHCA, the FRB Commitments and Massachusetts Banking Law Regulations (except to the extent waived or otherwise approved by the FRB FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB FRB, the Division or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or or, to the knowledge of the Blue Hills Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Blue Hills Parties’ knowledge, threatened by the Commission, the FRB, the Division Division, or any other Federal or state regulatory authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Blue Hills Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).D.
(e) A Prior to the mailing of the Prospectus, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Blue Hills Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Blue Hills Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Blue Hills Parties independently, or of the Primary Blue Hills Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Blue Hills Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Blue Hills Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Blue Hills Parties, threatened by the FRB, the Division Division, or any other Federal or state regulatory authority; and (viii) to the best knowledge of the Primary Blue Hills Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Blue Hills Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, Blue Hills Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 Blue Hills Parties shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, Blue Hills Parties taken as a whole; (iviii) none of the Primary Blue Hills Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (viv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Blue Hills Parties, threatened against the any of the Primary Blue Hills Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, Blue Hills Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Blue Hills Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & CompanyCo., P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & CompanyCo., P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier MHC as of December 31, 2011 2013 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier MHC prepared by the Mid-TierMHC, a reading of the minutes of the meetings of the Boards of Directors/Trustees Directors of each of the Primary Blue Hills Parties and consultations with officers of the Mid-Tier MHC responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-TierMHC, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier MHC at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (hi), they have compared with the general accounting records of the Mid-TierMHC, which are subject to the internal controls of the Mid-TierMHC, the accounting system and other data prepared by the Mid-TierMHC, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & CompanyCo., P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii) of subsection (hi) to be a date specified in the letter required by this subsection (hj) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(lk) At the Closing Date, the Holding Company shall receive a letter from RP Financial, Financial LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Blue Hills Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Massachusetts Conversion Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(ml) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate certificates from the Massachusetts Department Secretary of Revenue evidencing the valid existence State of the MHC; (v) certificate from the Commonwealth of Massachusetts Department of Revenue evidencing the valid existence and good standing of the MHC and the Mid-Tier; (viv) a certificate from the Division evidencing the good standing of the Bank; (viivi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viiivii) a certificate from the FHLB-Boston FHLBB evidencing the Bank’s membership therein; (ixviii) a certificate from the Maryland Department of Assessments and & Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; Company and (xiix) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, federal or federal savings and loan associations state chartered depository institutions or a general moratorium on the withdrawal of deposits from commercial banks federal or federal savings and loan associations state chartered depository institutions declared by federal or state authorities; (iii) the engengagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Blue Hills Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Blue Hills Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Blue Hills Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OTS, the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application SEC and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's, the MHC's, the Mid-Tier Holding Company's or the Bank's knowledge, threatened by the CommissionOTS, the FRB, the Division SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesCompany, the MHC, the Mid-Tier Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing in good standing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances State of Delaware; the MHC has been duly organized and is validly existing in good standing as a federal mutual holding company under which they were made, not misleadingthe laws of the United States of America; the Mid-Tier Holding Company has been duly incorporated and is validly existing as a federally-chartered holding company in good standing under the laws of the United States of America.
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business Each of the Primary Parties Company, the MHC and the conditions set forth in this Section 8 Mid-Tier Holding Company have been satisfied; (iii) since the full corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus, .
(iii) The Bank is a validly existing federally-chartered savings association in stock form duly authorized to conduct its business and since the respective dates own its property as of which information is given described in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery . All of the Shares on capital stock of the terms Bank to be outstanding upon completion of the Conversion will be duly authorized and in will be validly issued, fully paid and non-assessable and will be owned by the manner contemplated in the ProspectusCompany, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(hiv) Prior to and at the Closing Date: (i) The Bank is a member in the reasonable opinion good standing of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business FHLB-New York. The deposit accounts of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into Bank are insured by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed up to the Agent) maximum amount allowed under law and no proceedings for the termination or which materially and adversely would affect the financial condition, results revocation of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be such insurance are pending or, to such counsel's Actual Knowledge, threatened; the knowledge description of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken liquidation account as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as under the Agent may reasonably request; captions "The Conversion - Effects of Conversion on Depositors, Borrowers and they have found such amounts Members - Effect on Liquidation Rights" and percentages "Liquidation Rights" to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer that such information constitutes matters of shares of common stock or other securities of the Holding Company is not otherwise prohibited law and legal conclusions, has been reviewed by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties counsel and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies accurately described in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectrespects.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Federal Savings Bank Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Federal Savings Bank Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Federal Savings Bank Parties shall have conducted the Conversion Reorganization and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the FRB MHC Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Control Act Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the FRB Federal Reserve, the OCC, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application Applications shall have been approved by the FRB Federal Reserve, the OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on FDIC, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the Federal Savings Bank Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Federal Savings Bank Parties’ knowledge, threatened by the Federal Reserve, the Commission, the FRB, OCC or the Division FDIC or any other Federal regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇ ▇, PC, in form and substance reasonably satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Federal Savings Bank Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Federal Savings Bank Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for ▇ LLC dated the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date date hereof and addressed to the Agent and for its benefitAgent, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇such letter (i) confirming that ▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to ▇ LLC is a firm of independent public accountants within the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing meaning of the Prospectus to 1933 Act and the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, P.C. shall state the consolidated 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 and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim consolidated financial statements of the Bank prepared by the Bank and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Board of Directors of the Bank and Audit Committee thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such “Recent Developments” information included 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) except as stated in such letter, during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans (as to non-performing and special mention loans, through the most recent month-end only) or, through the most recent month-end only, decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Bank from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLC dated the Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of obtaining or confirming exemptions, qualifications or such letter shall not be more than three business days prior to the registration of the Shares under applicable state securities lawClosing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents 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 Shares and the contribution of the Foundation 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.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselFederal Savings Bank Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; Date (vsubject to the standard set forth in the introductory paragraph of this Section 11);
(iv) the Primary Federal Savings Bank Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vii) no order suspending the ConversionFederal Reserve, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBCommission, the Division OCC, the FDIC or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRBFederal Reserve, the Division FDIC or any other applicable regulator the OCC in approving the ConversionApplications or to enjoin the Reorganization.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇ Financial Advisors, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the Federal Savings Bank Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Federal Savings Bank Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Federal Savings Bank Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesFederal Savings Bank Parties independently, considered or the Federal Savings Bank Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to therein.
(k) At or contemplated thereinprior to the Closing Date, (i) a copy of the letter from the Federal Reserve approving the MHC Notice, including the establishment of the Foundation; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition a copy of the Primary Parties is set forth in letter from the Prospectus, other than transactions referred to or contemplated thereinFederal Reserve approving the Holding Company Application; (iii) a copy of the letter from the OCC approving the OCC Applications; (iv) a copy of the letter from the FDIC approving the FDIC Application; (v) a copy of the order from the Commission declaring the Registration Statement effective, if available; (vi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (viii) a certified copy of each of the Company’s, the Bank’s and the MHC’s Charter and Bylaws, as applicable; and (ix) any other documents that the Agent shall reasonably request.
(l) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Federal Savings Bank Parties shall will have received from the FRBFederal Reserve, the Division OCC, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(jo) To All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver provisions hereof only if they are reasonably satisfactory in form and substance to the Agent a “lock-up” agreement, each in substantially and to counsel for the form Agent. Any certificate signed by an officer of Exhibit E hereto, relating any Federal Savings Bank Party and delivered to the sales and certain other dispositions Agent or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, to counsel for the Agent shall receive be deemed a letter dated the Closing Date, addressed representation and warranty by such Federal Savings Bank Party to the Agent, confirming Agent as to the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Datetherein.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the FRB Regulationslaws, regulations and policies of the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator)State of Connecticut, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Department, the FRB or any other applicable regulatorand, if applicable, the FDIC.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Reorganization Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB Department and the Massachusetts Application shall have been approved by the Division FRB, respectively, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledgeknowledge of the Company or the Bank, threatened by the Commission, the Department, the FRB, the Division FDIC or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., LLP special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing DateCompany, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request MHC and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing DateBank, to the effect that: :
(i) they The Company and the MHC have carefully examined been duly incorporated as corporations and are validly existing under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Connecticut.
(ii) since The Bank, the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties Company and the conditions set forth in this Section 8 MHC have been satisfied; (iii) since the respective dates corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing Connecticut-chartered savings bank in permanent capital stock form of organization, duly authorized to conduct its business and since the respective dates own its property as of which information is given described in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery . All of the Shares on outstanding capital stock of the terms Bank upon completion of the Reorganization will be duly authorized and, upon payment therefor, will be validly issued, fully-paid and in non-assessable and will be owned by the manner contemplated in the ProspectusCompany, free and clear of any liens, encumbrances, claims or other restrictions.
(hiv) Prior to and at the Closing Date: (i) in the reasonable opinion The Bank is a member of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business FHLB-Boston. The deposit accounts of the Primary PartiesBank are insured by the FDIC up to the maximum amount allowed under law and, considered as one enterpriseno proceedings for the termination or revocation of such insurance are pending or to such counsel’s actual knowledge, from that as threatened.
(v) Immediately following the consummation of the latest dates as Reorganization, the authorized, issued and outstanding Common Shares of which such condition is the Company will be within the range set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall Prospectus under the caption “Capitalization,” and no Common Shares have been no material transaction entered into by any Primary Party since issued prior to the latest dates as of which Closing Date; at the financial condition time of the Primary Parties is Reorganization, the Common Shares subscribed for pursuant to the Offering and the Charitable Foundation Shares 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 the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares and the Charitable Foundation Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel’s actual knowledge, the Common Shares will not, when issued, be subject to any liens, charges, encumbrances or other than claims created by the Company or the Bank.
(vi) The Bank, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions referred contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Charitable Foundation have been duly and validly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or contemplated therein; affecting the enforcement of creditors’ rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) none of the Primary Parties shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed laws relating to the Agent) or which materially safety and adversely would affect the financial conditionsoundness of insured depository institutions, results of operations or business of the Primary Parties, taken as a whole; and (iv) none applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Primary Parties shall have been Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (v) no action, suit or proceeding, at law or proceeding in equity or before at law).
(vii) The Reorganization Application has been approved by the Department and FRB. The FRB has approved the Holding Company Application and no action has been taken, and none is pending or to such counsel’s actual knowledge threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank. No vote of corporators is required to approve the Reorganization or the establishment of the Charitable Foundation.
(ix) Subject to the satisfaction of the conditions to the Department’s approval of the Reorganization and the FRB’s approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal or state commissionregulatory agency is required in connection with the execution and delivery of this Agreement, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge issuance of the Primary PartiesShares, threatened against the any issuance of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially Charitable Foundation Shares and adversely affect the financial condition, results of operations or business consummation of the Primary PartiesReorganization, taken except as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the jurisdictions rules and regulations of the NASD (as the Agent shall have reasonably requested and as agreed to by the Primary Partieswhich no opinion need be rendered).
(ix) Concurrently The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s actual knowledge, threatened by the Commission.
(xi) At the time the Reorganization Application, including the Prospectus contained therein, was approved by the Department, the Reorganization Application, including the Prospectus contained therein, complied as to form in all material respects with the execution requirements of this Agreementthe laws, regulations and policies of the State of Connecticut (other than the financial statements, the Agent shall receive a letter from Wolf & Companynotes thereto, P.C.and other tabular, dated financial, statistical and appraisal data included therein, as of to which no opinion need be rendered).
(xii) At the date hereof and addressed to time that the Agent: Registration Statement became effective, (i) confirming that Wolf & Companythe Registration Statement (as amended or supplemented, P.C. is a firm of independent registered public accountants within if so amended or supplemented) (other than the applicable rules financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the Public Company Accounting Oversight Board 1933 Act and the 1933 Act Regulations, (United Statesii) the Prospectus (other than the financial statements, the notes thereto, and stating other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in effect that in its opinion all material respects with the consolidated financial statements and related notes requirements of the Mid-Tier as of December 31, 2011 1933 Act and 2012the 1933 Act Regulations, and covered by their opinion included in (iii) any marketing material to be used following the Prospectus, and any other more recent unaudited financial statements included in time the Prospectus, Registration Statement becomes effective will comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator 1933 Act and the 1933 Act; Act Regulations.
(iixiii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards The terms and provisions of the Public Company Accounting Oversight Board (United States)) consisting of a reading Shares of the latest available consolidated financial statements of Company conform, in all material respects, to the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included description thereof contained in the Prospectus are not in conformity with the 1933 ActRegistration Statement and Prospectus, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent form of certificate used to evidence the Shares complies with that applicable laws.
(xiv) There are no legal or governmental proceedings pending or to the actual knowledge of the audited consolidated financial statements included such counsel, threatened which are required to be disclosed in the Registration Statement and Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bankthose disclosed therein.
(xv) To such counsel’s actual knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or non-performing assets, other instruments required to be described or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included the Reorganization Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Prospectus Reorganization Application, the Registration Statement or the Prospectus. The description in the Reorganization Application, the Registration Statement and the performance Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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 information required to be in agreement therewith (subject to rounding)shown.
(jxvi) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm The Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the applicable requirements of Title 12 Control Act Regulations; no order has been issued by the Department, the Commission, the FRB, the FDIC, or any state authority to suspend the Offering or the use of the Code of Federal RegulationsProspectus, and (iii) further stating that its opinion no action for such purposes has been instituted or to such counsel’s actual knowledge threatened by the Department, the Commission, the FRB, the FDIC, or any other state authority and, to such counsel’s actual knowledge, no person has sought to obtain regulatory or judicial review of the aggregate pro forma market value final action of the Department approving the Plan, the Reorganization Application, the Holding Company including Application or the Prospectus. No vote of corporators was required to approve or adopt the Plan.
(xvii) To such counsel’s actual knowledge, the Company, the MHC and the Bank have obtained all licenses, permits and other governmental authorizations currently required for the conduct of their businesses as described in the Registration Statement and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s actual knowledge the Company, the MHC and the Bank are in all material respects complying therewith.
(xviii) None of the MHC, the Company nor the Bank is in violation of its Charter and Bylaws or its Articles of Incorporation, and Bylaws, as appropriate, or, to such counsel’s actual 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 materially and adversely affect the financial condition or results of operations of the MHC, the Company and the Bank on a consolidated basis; to such counsel’s actual 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 MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject (other than the establishment of the liquidation account); and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company or MHC, or the Articles of Incorporation, or the Bylaws of the Bank, as most recently updatedor result in any violation of any applicable federal or state law, remains in effectact, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(mxix) At or prior The Company’s Charter and Bylaws comply in all material respects with the laws of the State of Connecticut. The MHC’s Charter and Bylaws comply in all material respects with the laws of the State of Connecticut. The Bank’s Articles of Incorporation, and Bylaws comply in all material respects with the State of Connecticut.
(xx) The Charitable Foundation has been duly incorporated and is validly existing as a non-stock corporation under the laws of the State of Connecticut with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Charitable Foundation is not a bank holding company within the meaning of the BHCA as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus. No vote of corporators was required to establish the Charitable Foundation.
(xxi) The information in the Prospectus under the captions “Supervision and Regulation,” “The Reorganization and Stock Offering,” “Restrictions on Acquisition of Rockville Financial, Inc. and Rockville Bank,” “Rockville Bank Community Foundation, Inc.” and “Description of Capital Stock of Rockville Financial, Inc.,” to the Closing Dateextent 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 correct in all material respects. The description of the Reorganization process in the Prospectus under the caption “The Reorganization and Stock 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 fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “The Reorganization and Stock Offering—Federal and State Tax Consequences of the Reorganization” has been reviewed by such counsel and fairly describes the federal and state tax opinions rendered by them to the Company, the Agent MHC and the Bank with respect to such matters. In addition, such counsel shall receive: (i) a copy state that during the preparation of the letter from the FRB approving Reorganization Application, the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared , the Registration Statement effective; (iv) certificate from and the Massachusetts Department of Revenue evidencing Prospectus, they participated in conferences with certain officers of, the valid existence independent public and internal accountants for, and other representatives of, the Company, the MHC and the Bank, at which conferences the contents of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of Reorganization Application, the Holding Company; (x) evidence of approval of Company Application, the Massachusetts Application by Registration Statement and the Division; Prospectus and (xi) related matters were discussed and, while such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall counsel have not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engconfir
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties Holding Company and the Association herein are, contained are at and as of the commencement of the Offerings Subscription and Community Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Holding Company and the Association shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the Company's or Association's knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or Association's knowledge, threatened by the OTS, the Commission, the FRB, the Division or any other Federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.▇▇, special counsel for the Primary PartiesHolding Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed satisfactory to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and to their knowledge 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 carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make adverse effect on the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the financial condition, financial or otherwise, or in the earnings, capital, properties or business affairs of the Primary Parties Holding Company and the Association considered as a whole.
(ii) The Association is validly existing federally chartered mutual savings and loan association and, at the Closing Date, upon satisfaction of the conditions set forth in the Plan, will become validly existing federally chartered stock savings bank with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Section 8 have Agreement and perform its obligations hereunder; the activities of the Association as described in the Prospectus are permitted by the rules, regulations and practices of the OTS; the issuance and sale of the capital stock of the Association to the Holding Company has been satisfiedduly and validly authorized by all necessary corporate action on the part of the Holding Company and the Association and, upon payment therefore 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) since The Association is a member of the respective dates as FHLB of which information is given in the Registration Statement, the General Disclosure Package Cincinnati and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business savings accounts of the Primary Parties independently, or of Association are insured by the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior FDIC up to the Closing Date and will comply in all material respects with all obligations to be satisfied maximum amount allowed by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued law and no proceedings for that purpose the termination or revocation of such insurance are pending or, or to such counsel's knowledge threatened; and the knowledge description of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than liquidation account 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom Prospectus under the securities or blue sky laws captions "The Conversion - Effects of the jurisdictions as the Agent shall have reasonably requested Conversion - Effects on Liquidation Rights," and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as "- Liquidation Rights" has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of reviewed by such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, directly from such accounting recordscounsel and, to the extent specified in that 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).
(j) To the extent a sale or other disposition or transfer information constitutes matters of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided thereinlegal conclusions, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies accurate in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectrespects.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and sale of the Shares and all obligations of the Agent hereunder, as hereunder are subject to the Shares to be delivered at accuracy of the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank contained herein are, at and as of the commencement date hereof and the Closing Time, to the accuracy of the Offerings statements of officers and at and as directors of the Closing DateCompany and the Bank made pursuant to the provisions hereof, true to the performance by the Company and correct in all material respects, the condition that the Primary Parties shall have performed all Bank of its their obligations hereunder to be performed on or before such dateshereunder, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Prospectus contained in the Conversion Application and the Holding Company Application and the Conversion Application shall have been approved by the FRB and OTS for mailing prior to the Massachusetts Application shall have been approved by commencement of the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOffering, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Securities Act or proceedings therefore initiated or or, to any of the Century Parties’ knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion and the Offering shall have been issued or proceedings therefore initiated or, to any of the Primary Century Parties’ knowledge, threatened by the Commission, the FRBFDIC, the Division OCC or the OTS or any other Federal or state authoritygovernmental body.
(cb) At the Closing DateTime, the Agent shall have received the received:
i. The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇ ▇▇▇▇▇▇ Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.L.L.P., special counsel for the Primary Parties, acceptable to Agent in form and substance satisfactory to counsel for Agent, as attached hereto as set forth in Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, ii. The letter of Silver, ▇▇▇▇▇▇▇▇▇ & Taff, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the AgentL.L.P., in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors to the effect that during the preparation of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request Registration Statement and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ Prospectus, Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., participated in conferences with certain officers of and other representatives of the Century Parties, counsel to Agent, representatives of the independent public accounting firms for the Century Parties and representatives of Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)) Silver, ▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ & Taff, L.L.P., has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., that caused Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P., to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the 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 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).
iii. The favorable opinion, dated as of the Closing Time, of ▇▇▇▇, P.C. shall state ▇▇▇▇▇▇ & Parks, LLP, counsel for Liberty, acceptable to Agent in form and substance satisfactory to counsel for Agent, as set forth in Exhibit D.
iv. A Blue Sky Memorandum from Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, addressed to the Company and the Agent may relyrelating to the Offerings, including the Agent’s participation therein. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, Agent shall receive a letter from (i) ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC, dated the date hereof and addressed to Agent, such letter confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Century Parties is required by Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC’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 Securities Act, the Exchange 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 Directors of the Century Parties, the Audit Committee of the Bank, a review of the unaudited interim financial information as of and for the interim period ending , 2007 and the latest available unaudited quarterly financial statements of the Bank prepared by the Bank which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled [“Recent Developments”] are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of Cincinnati, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Bank or decrease in assets, deposits, loan losses allowances, equity or retained earnings of the Bank or there was any decrease in net income, non-interest income, tax expense, net interest income, net interest income after provision for loan losses or provision for loan losses of the Bank or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Century 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 Century Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) Concurrently with the execution of this Agreement, Agent shall receive a letter from (i) ▇▇▇▇▇▇▇ + ▇▇▇▇▇▇▇ LLC, dated the date hereof and addressed to Agent, such letter confirming that ▇▇▇▇▇▇▇ + ▇▇▇▇▇▇▇ LLC] is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in Liberty is required by Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇▇▇ + ▇▇▇▇▇▇▇ LLC’s opinion the financial statements of Liberty included in the Prospectus covered by ▇▇▇▇▇▇▇ + ▇▇▇▇▇▇▇ LLC’s opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange 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 Directors of Liberty, the Audit Committee of Liberty, a review of the unaudited interim financial information as of and for the interim period ending , 2007 and the latest available unaudited quarterly financial statements of Liberty prepared by Liberty which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of Liberty responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of Cincinnati, securities sold under agreements to repurchase and any other form of debt other than deposits) of Liberty or decrease in assets, deposits, loan losses allowances, equity or retained earnings of Liberty there was any decrease in net income, non-interest income, tax expense, net interest income, net interest income after provision for loan losses, or provision for loan losses of Liberty or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of Liberty; 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 (d), they have compared with the general accounting records of Liberty, which are subject to the internal controls of the accounting system of Liberty and other data prepared by Liberty directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Time, Agent shall receive letters from (i) ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC; (ii) ▇▇▇▇▇▇▇ + ▇▇▇▇▇▇▇ LLC and (iii) dated as of the Closing Time, addressed to Agent, confirming the statements made by in their letters delivered by it pursuant to subsections (c) and (d) of this Section 10, the “specified date” referred to in clause (ii)(B) of such subsections to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Time.
(f) At the Closing DateTime, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Time, Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCentury Parties, dated as of such the Closing DateTime, without personal liability to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties or business affairs of the Primary Parties independentlyCentury Parties, or of the Primary Parties considered as one enterprise, or Liberty, whether or not arising in the ordinary course of business; (iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (viv) each of the Primary Century Parties have and Liberty has complied in all material respects with all material agreements and have satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date and will comply Time including the conditions contained in all material respects with all obligations this Section 10; (v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing DateCommission or any other governmental body; (vi) no stop order suspending the Reorganization, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission OTS, the FDIC, the OCC, the Commission, or any other federal or state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, the Division or any other applicable regulator OTS in approving the ConversionPlan or to enjoin the Offering.
(gh) At the Closing Time, Agent shall receive a letter from the Appraiser, dated as of the Closing Time, (i) confirming that said firm is independent of the Century 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 Common Stock, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Century Parties or Liberty Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, Statement and the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that 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 Century Parties or Liberty, 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 Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engcon
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion Conversion, including the contribution to the Foundation, in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB Commissioner and the FDIC, the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Conversion Application and Acquisition Statement approved by the Commissioner and not objected to by the FDIC and the Holding Company Application and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date, FRB; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the Company’s, the MHC’s or the Bank’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s or the Bank’s knowledge, threatened by the CommissionCommissioner, the FRBFDIC, the Division FRB the SEC or any other Federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of H▇▇▇▇▇▇▇, ▇▇▇▇▇ & S▇▇▇▇▇ LLP, special counsel for the Company, the MHC, the Mid-Tier Holding Company and the Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing as a business corporation under the laws of the State of Maryland; the MHC has been duly incorporated and is legally existing as a nonstock corporation and mutual holding company under the laws of the State of Connecticut; the Mid-Tier Holding Company has been duly incorporated and is legally existing as a business corporation and mutual holding company subsidiary holding company under the laws of the State of Connecticut.
(ii) Each of the Company and the MHC has the corporate power and authority to own, lease and operate their respective properties and to conduct their business as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus.
(iii) The Bank is a validly existing Connecticut-chartered savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus. Upon completion of the Conversion in accordance with the Plan, all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law (exclusive of any opt in provisions) , and to such counsel’s knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion and Offering-Effects of Conversion on Depositors and Borrowers-Effect on Liquidation Rights” and “-Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued in connection with incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering and the Foundation Shares have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Maryland or Connecticut law or regulations, the Company’s Articles of Incorporation or pursuant to the regulations of the Commissioner, FDIC or FRB (except to the extent that subscription rights and priorities thereto exist pursuant to the Plan), and the terms and provisions of the Common Shares conform in all material respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Common Shares complies with the requirements of Maryland General Corporation Law. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, the MHC and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan, including the contribution to the Foundation. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application and Acquisition Statement have been approved by the Commissioner and not objected to by the FDIC, and the Holding Company Application has been approved by the FRB and the Prospectus and Corporator’s Informational Material have been declared effective and cleared by the Commissioner, no action has been taken, and to such counsel’s knowledge, is pending, or is threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan and the contribution to the Foundation have been duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Bank, and approved by the required vote of the Corporators of the MHC.
(ix) Subject to the satisfaction of the conditions to the Commissioner’s, the FDIC’s and the FRB’s approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, including the contribution to the Foundation, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433, and no stop order proceedings with respect thereto have been instituted or, to the knowledge of such counsel, are pending or threatened under the 1▇▇▇ ▇▇▇.
(xi) At the time the Conversion Application, including the Prospectus and Corporator’s Informational Material contained therein, was approved by the Commissioner, the Conversion Application, including the Prospectus and Corporator’s Informational Material contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, the 1934 Act Regulations (other than the Corporator’s Informational Material), federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the compliance as to form of the Conversion Application, we have assumed that the statements made therein are correct and complete.
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and applicable federal law.
(xiii) To such counsel’s knowledge, no action, suit or proceeding at law or in equity is pending or threatened in writing against or affecting any of the Company, the MHC, the Mid-Tier Holding Company or the Bank or any of their properties before or by any court or governmental official, commission, board or other administrative agency, authority or body, or any arbitrator, wherein an unfavorable decision, ruling or finding would have a material adverse effect on the ability of the Company, the MHC, the Mid-Tier Holding Company or the Bank to consummate the transactions contemplated by this Agreement or which is required to be disclosed in the Registration Statement or the Prospectus and is not so disclosed.
(xiv) 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 Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, 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.
(xv) The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; and, to such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Commissioner, the FDIC or the FRB on the Plan, the Conversion Application, the Acquisition Statement, the Holding Company Application or the Prospectus.
(xvi) The execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (a) 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 Company, the MHC, the Mid-Tier Holding Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier Holding Company or the Bank is a party that is filed as an exhibit to the Registration Statement (other than the establishment of the liquidation accounts), (b) result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Certificate of Incorporation or the Bylaws of the MHC, the Mid-Tier Holding Company or the Bank or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of FINRA and/or Nasdaq Global Market need be rendered) or order or court order, writ, injunction or decree.
(xvii) Farmington Savings Loan Servicing Inc., Village Investments, Inc., Village Corp., Limited, 2▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver., ▇▇▇▇▇▇▇▇▇ Management Corp. and Village Square Holdings, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for Inc. (collectively the Agent, in form and substance “Subsidiaries”) are validly existing as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors corporations under the laws of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion State of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Connecticut, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on the power and authority to own, lease and operate their part properties and to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than conduct their businesses 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated described in the Prospectus.
(h) Prior to and at ; the Closing Date: (i) in the reasonable opinion activities of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered Subsidiaries as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included described in the Prospectus are not in conformity with permitted to subsidiaries of a Connecticut state chartered savings bank under the 1933 Act, applicable accounting requirements BHCA; all of the FRB, the Division issued and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of outstanding shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration Subsidiaries are owned beneficially and of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application record by the Division; Bank free and (xi) such other documents and certificates as the Agent may reasonably requestclear of any security interest, mortgage, pledge, lien or encumbrance.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the eng
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary CS Parties herein contained are, at and as of the commencement of the Offerings Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary CS Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary CS Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator), Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB OCC, the Federal Reserve and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application and Holding Company Application shall have been approved by the FRB OCC and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this AgreementFederal Reserve, or with the Agent’s consent at a later time and daterespectively, and and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or or, to the knowledge of the CS Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the CS Parties’ knowledge, threatened by the OCC, the Federal Reserve, the Commission, the FRB, the Division or any other Federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary PartiesPC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.B:
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the CS Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CS Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A a blue sky memorandum from ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. PC relating to the OfferingsOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state PC permits the Agent may to rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from S▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ PLLC dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from S▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ PLLC dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (e) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents 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 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.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCS Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, there has been no material adverse change any Material Adverse Effect otherwise than as set forth or contemplated in the condition, financial or otherwise, or in Registration Statement and the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; Prospectus;
(iviii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(viv) the Primary CS Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply Date, including the conditions contained in all material respects with all obligations this Section 11;
(v) no stop order has been issued or, to be satisfied their knowledge, is threatened, by them after the Closing Date; Commission or any other governmental body;
(vi) no stop order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock 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, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vii) no order suspending the ConversionOCC, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRBFederal Reserve, the Division Commission, or any other Federal federal or state authority; and and
(viiivii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FRB, OCC in approving the Division Plan or any other applicable regulator approving to enjoin the Conversion.
(gi) At the Closing Date, the Agent shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the CS Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CS Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Primary CS Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake 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 Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PartiesCS Parties independently, considered or the CS Parties taken as one enterprisea whole, from that and as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the Conversion Application and a copy of the letters from the OCC approving the Conversion Application, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a copy of the letter from the FRB Federal Reserve approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; , (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston Cincinnati evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engmembership
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offerings Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the FRB Conversion Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the FRB and any other applicable regulator)laws of Maryland, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Holding Company Application Commission and the Conversion Application shall have been approved by the FRB and the Massachusetts Application shall have been approved by the Division OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date, ; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the FRBOTS, the Division FDIC, or any other Federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the AgentCompany and the Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors a corporation under the laws of the Primary Parties delivered pursuant hereto State of Maryland.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing federally chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Cincinnati. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel's Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion--Effects of Conversion to Stock Form--Liquidation Account," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel shall reasonably request and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no Common Shares have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to 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 the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into the Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of ▇▇▇▇ delivered pursuant to Section 8(cequitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(evii) A The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS. The OTS 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 no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank, and based upon the certificate of the inspectors of election, by the members of the Bank.
(ix) Subject to the satisfaction of the conditions to the OTS's approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, 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, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) To the Actual Knowledge of such counsel, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, 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.
(xvi) The Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to such counsel's Actual Knowledge, no order has been issued by the OTS, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or threatened by the OTS, the Commission, the FDIC, or any other state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application, the Holding Company Application or the Prospectus.
(xvii) To such counsel's Actual Knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) Neither the Company nor the Bank is in violation of its Articles of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to such counsel's Actual 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 impact on the financial condition or results of operations of the Company and the Bank on a consolidated basis; to such counsel's Actual 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 Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than the establishment of the liquidation account); and such action will not result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Bank or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Maryland. The Bank's Charter and Bylaws comply in all material respects with federal law.
(xx) The information in the Prospectus under the captions "Regulation and Supervision," "The Conversion," "Restrictions on Acquisition of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offerings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ Financial and ▇▇▇▇▇▇▇▇ & Federal" and "Description of ▇▇▇▇▇▇▇▇ Financial's Capital Stock," to the extent that such information constitutes matters of law, P.C. shall state the Agent may relysummaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The blue sky memorandum will relate description of the Conversion process in the Prospectus under the caption "The Conversion" to the necessity extent that such information constitutes matters of obtaining law, summaries of legal matters, documents or confirming exemptionsproceedings, qualifications or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the registration Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion--Effects of the Shares under applicable Conversion to Stock Form--Tax Effects" has been reviewed by such counsel and fairly describes the federal and state securities law.
(f) At the Closing Datetax opinions rendered by them and ▇▇▇▇▇, the Agent shall receive a certificate of the Chief Executive Officer ▇▇▇▇▇▇ and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCompany LLP, dated as of such Closing Daterespectively, to the effect that: (i) Company and the Bank with respect to such matters. In addition, such counsel shall state that during the preparation of the Conversion Application, the Registration Statement and the Prospectus, they have carefully examined participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the Conversion Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in their opinionthe Conversion Application, at the time Registration Statement or the Prospectus became authorized and do not assume any responsibility for final usesuch information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Company and the Bank), nothing has come to their attention that would lead them to believe that the Conversion Application, the Prospectus did not contain Registration Statement, the Prospectus, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use. In giving such opinion, no event has occurred which should have been set forth in an amendment such counsel may rely as to all matters of fact on certificates of officers or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business directors of the Primary Parties Company and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Primary Parties have complied in all material respects with all agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the FRB, the Division or any other Federal or state authority; and (viii) to the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the 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 Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates 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 FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; (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 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, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Primary Parties, taken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Wolf & Company, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that Wolf & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier as of December 31, 2011 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier, other than normal deposit fluctuations for the Bank, or non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Mid-Tier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Mid-Tier, which are subject to the internal controls of the Mid-Tier, the accounting system and other data prepared by the Mid-Tier, 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).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Wolf & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated 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 Title 12 of the Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission has declared the Registration Statement effective; (iv) certificate from the Massachusetts Department of Revenue evidencing the valid existence of the MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (xi) such other documents Bank and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engpublic officials. Such counsel's op
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