Conditions to the Agent’s Obligations Sample Clauses: 1k Samples

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 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the 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, 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 Federal Reserve Board 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ Board, the Connecticut Banking Department 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 ~~Holding Company~~ Connecticut Application shall have been approved by the Federal Reserve Board and the 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, 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 Federal Reserve ~~Board~~ Board, the Connecticut 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 ▇▇L▇▇▇ ▇▇▇▇▇~~▇ LLP~~▇, 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 ▇K▇▇▇▇▇▇▇▇▇ ▇T▇▇▇▇▇▇▇ & ▇S▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇L▇▇▇ ▇▇▇▇▇~~▇ LLP~~ ▇, PC relating to the Offering, 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▇▇▇ ▇▇▇▇▇~~▇ LLP~~ ▇, 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve ~~Board~~ Board, the Connecticut Banking Department or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve ~~Board~~ Board, the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 ~~BDO USA~~Wolf & Company, ~~LLP~~P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~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 financial statements and related notes of the Mid-Tier Holding Company as of ~~December 31~~September 30, ~~2014~~2015, June 30, 2015 and June 30, 2014 and ~~June~~ the three months ended September 30, ~~2013 and the six months ended December 31, 2014~~ 2015 and the years ended June 30, ~~2014~~ 2015 and ~~2013~~2014, and covered by their opinion 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 SEC and the 1933 Act; (ii) stating ~~that~~ 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; or (B) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (BC) during the period from the date of 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 the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~Wolf & Company, ~~LLP~~ 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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 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 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 letters from the Federal Reserve ~~Board~~ Board, the Connecticut Banking Department and any other applicable regulator approving the Conversion Application, the Holding Company Application and the ~~Holding Company~~ Connecticut Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the ~~New Jersey~~ Connecticut Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-~~New York~~ Boston evidencing the Bank’s membership therein; (vii) 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; and (~~viii~~ix) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shde

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 ~~Offering~~ 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 ~~Conversion Regulations~~ FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ FRB or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ Commission, the Holding Company Application and the Conversion ~~Application and the Holding Company~~ Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ FRB, the Division 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 ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, 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~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ P.C. relating to the ~~Offering~~Offerings, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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~~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 ~~or prospects~~ of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) 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 in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the ~~Offering~~ 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 ~~Federal Reserve Board~~ FRB, the Division or any other ~~federal~~ Federal or state authority; and (~~vii~~viii) to the knowledge of the Primary Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 ~~Offering~~ 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~~ Parties, considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 ~~any Governmental Entity~~ 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 ~~in all material respects~~ (which direction, if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Primary Parties, taken as a ~~Material Adverse Effect~~whole; (~~iii~~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; (ivv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the ~~Conversion or Offering and no statute~~Primary Parties, ~~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 Offering~~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 ~~BDO USA~~Wolf & Company, ~~LLP~~P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~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 ~~Holding Company~~ as of December 31, ~~2014, June 30, 2014~~ 2011 and ~~June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013~~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 ~~SEC~~ FRB and any other applicable regulator and the 1933 Act; (ii) stating ~~that~~ 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-~~Tier Holding Company~~Tier, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company~~Bank, or ~~decreases~~ 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 ~~Holding Company and (B) during the period from~~ at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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~~ ; or (D) there was any decrease in ~~the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in~~ net income or total interest ~~income,~~ income or net interest ~~income,~~ income or net interest income after provision for loan losses, non-interest income ~~before income tax~~ or increase in provision for loan losses or non-interest expense ~~or net income~~ of the Mid-~~Tier Holding Company~~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 (ih), they have compared with the general accounting records of the Mid-~~Tier Holding Company~~Tier, which are subject to the internal controls of the Mid-~~Tier Holding Company~~Tier, the accounting system and other data prepared by the Mid-~~Tier Holding Company~~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, ~~(i)~~ confirming the statements made by ~~BDO USA~~Wolf & Company, ~~LLP~~ 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (kl) 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 ~~Conversion~~ 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 ~~Conversion~~ 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. (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 ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ FRB approving ~~the Conversion Application and~~ the Holding Company ~~Application and authorizing the use of the Prospectus~~Application; (ii) a copy of ~~the order~~ a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission ~~that~~ has declared the Registration Statement effective; (~~iii~~iv) ~~certificates~~ certificate from the ~~Federal Reserve Board~~ Massachusetts Department of Revenue evidencing the valid existence of the ~~MHC~~ MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-~~Tier Holding Company~~Tier; (ivvi) a certificate from the ~~New Jersey Banking Department~~ Division evidencing the good standing of the Bank; (vvii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-~~New York~~ Boston evidencing the Bank’s membership therein; (~~vii~~ix) 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 (~~viii~~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 other than temporary trading halts~~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 engagement 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 sheng

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 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~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 ~~Federal Reserve Board~~ FRB or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and the Conversion Application and~~ SEC, the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB and any other applicable regulator, and the amendments to the Bank’s charter shall have been approved by the 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB, the OCC or any other ~~federal~~ 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 ~~authority~~court 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~~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 ~~Primary~~ Chesapeake Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Chesapeake Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable~~ request and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to ~~the Agent~~subsection (c) above. (e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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 ~~Counsel~~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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Chesapeake Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Chesapeake Parties independently, or of the ~~Primary~~ Chesapeake Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Chesapeake Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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 Parties~~their knowledge, threatened by the ~~Commission~~ SEC or any state or federal authority; (vixii) no order suspending the Conversion, the 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~~their knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the FRB, the OCC, the FDIC or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 FRB or any other applicable ~~regulator approving~~ regulatory agency; and (xv) no order suspending the ~~Conversion~~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~~ 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 ~~Prospectus~~General 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 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~~ Chesapeake Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Chesapeake Party since the latest dates as of which the financial condition of the Chesapeake Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the ~~Primary~~ Chesapeake Parties shall have received from ~~any Governmental Entity~~ the OCC or the FRB 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~~direction (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Chesapeake Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 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~~ Chesapeake Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014~~2017 and December 31, ~~June 30~~2016, ~~2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Chesapeake Parties 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) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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 or short-term debt of the ~~Mid-Tier Holding Company~~Bank; or (C), ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~except as set forth in said letter, ~~or decreases~~ there was any decrease in the total assets, total loans, the allowance for loan losses, total ~~deposits~~ deposits, or total ~~equity~~ capital accounts of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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,~~ ; or (D) there ~~were~~ was any ~~decreases, as compared with the corresponding period in the preceding fiscal year,~~ decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income ~~before income tax expense~~ or net income or increase in non-interest expense or the provision for loan losses of the ~~Mid-Tier Holding Company~~Bank, 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shspecifie

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,~~ 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 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 ~~Conversion~~ MHC Regulations, the Control Act Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the Federal ~~Reserve Board~~ Reserve, the OCC, the FDIC, and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal ~~Reserve Board not later than 5:30 p.m. on~~ Reserve, the OCC and the FDIC, as applicable, as of the date of this ~~Agreement~~Agreement 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, to the knowledge of the ~~Primary~~ 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 ~~Federal Reserve Board~~ OCC or the FDIC or any other ~~federal~~ regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or ~~state authority~~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 ~~benefit~~benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇~~, 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 ~~may rely~~ 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, 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 ~~opinion~~ unaudited financial statements included in ~~rendering~~ 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 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 ~~pursuant~~ included in the Prospectus and the performance of the procedures referred to ~~Section 8(d~~in clause (ii) of this ~~Agreement~~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 ~~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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum receive a letter from ~~▇▇▇▇▇~~ ▇▇▇▇▇▇ LLP ~~relating~~ dated the Closing Date, addressed to the ~~Offering~~Agent, ~~including Agent’s participation therein~~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 such letter shall not be more than three business days prior to the Closing Date. (f) At or prior to Closing Date, counsel to the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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. (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 Counsel~~PyraMax 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ PyraMax Parties have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 or~~issued and, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for ~~that~~ any such purpose ~~are pending or, to the knowledge of the Primary Parties,~~ have been initiated or threatened by the Federal ~~Reserve Board~~ Reserve, the Commission, the OCC, the FDIC or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal ~~Reserve Board~~ Reserve, the FDIC or ~~any other applicable regulator~~ the OCC in approving the ~~Conversion~~Applications 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 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~~ PyraMax Parties ~~considered~~ independently, or the PyraMax Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the ~~Conversion Application and~~ MHC Notice, including the establishment of the Foundation; (ii) a copy of the letter from the Federal Reserve approving the Holding Company ~~Application and authorizing the use~~ Application; (iii) a copy of the ~~Prospectus;~~ letter from the OCC approving the OCC Applications, (iiiv) a copy of the letter from the FDIC approving the FDIC Application, (v) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective, if available; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-~~New York~~ Chicago evidencing the Bank’s membership therein; (~~vii~~viii) a ~~certificate from the Maryland State Department~~ certified copy of ~~Assessments and Taxation evidencing the good standing~~ each of the ~~Holding~~ Company’s, the Bank’s and the MHC’s Charter and Bylaws, as applicable; and (~~viii~~ix) ~~such~~ any other documents ~~and certificates as the~~ that Agent ~~may~~ shall reasonably request. (nl) 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 (~~Exchange, the ~~“NYSE”)~~ NASDAQ, or in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ 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 ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing Date, none of the PyraMax Parties will have received from the Federal Reserve, the OCC, or the ~~delivery of the Shares on the terms and~~ FDIC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the ~~Closing Date, counsel~~ provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any PyraMax Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such PyraMax Party to the Agent as to the statements made therein.

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, 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 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 Conversion Regulations (except to the extent waived in writing or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~OCC), 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 ~~Federal Reserve Board or any other applicable regulator~~OCC to the reasonable satisfaction of Agent and its counsel. (b) ~~The Registration Statement shall have been declared effective by~~ Prior to the ~~Commission and~~ Closing Date, the ~~Conversion Application and the Holding Company Application~~ Plan shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ Members of Elberton in accordance with the Plan, the Conversion Regulations, the applicable provisions of Elberton’s charter and bylaws and the Proxy Statement. (c) The Applications shall have been approved by the 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, 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 ~~Commission~~FDIC, the ~~Federal Reserve Board or~~ GDBF, the SEC, the FRB, the OCC, any other ~~federal~~ state authority or ~~state authority~~Governmental 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 benefit~~Date, 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 ▇▇▇▇▇▇ ~~LLP~~& Bird, ~~special counsel for~~ in form and substance reasonably satisfactory to the ~~Primary Parties~~Agent and Agent’s counsel, ~~which shall also state~~ 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 Agent, representatives of the independent public accountants for the Oconee Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular 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), ▇▇▇▇▇▇ ~~LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~& Bird has not independently verified the accuracy, ~~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~~ completeness or fairness of the ~~Closing Date~~ statements contained in the Offering Statement and ~~addressed~~ Offering Circular, on the basis of the foregoing, nothing has come to the ~~Agent and for its benefit,~~ attention of ▇▇▇▇▇~~▇▇▇▇~~▇ ▇▇& Bird that caused ▇▇▇▇▇▇ & ▇▇▇~~▇▇▇▇~~▇ ~~LLP~~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, ~~special counsel for the Agent~~notes to financial statements, schedules and other financial and statistical data included in or omitted from, or statistical or appraisal methodology employed, in ~~form and substance as reasonably acceptable to~~ the ~~Agent~~Offering Statement or Offering Circular). (ef) A blue sky memorandum from ▇▇▇▇~~▇ ▇▇▇▇~~▇▇ ~~LLP~~ & Bird relating to the Offering, 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 ▇▇▇▇~~▇ ▇▇▇▇~~▇▇ ~~LLP~~ & 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 ~~law~~laws. (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 ~~respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus~~Qualification Date, no event has occurred that should have been set forth in an amendment or supplement to the ~~Prospectus~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Oconee Parties ~~independently~~and the conditions set forth in this Section 10 have been satisfied; (iii) since the respective dates as of which information is given in the Offering 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 considered as one enterprise~~Bank, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Oconee Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Merger Conversion, the 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 ~~Federal Reserve Board~~ FDIC, the 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 ~~authority~~a 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; (~~vii~~ii) 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 Parties~~Elberton, ~~no person has sought to obtain regulatory or judicial review of~~ threatened by the ~~final action of~~ FDIC, the ~~Federal Reserve Board~~ GDBF, the OCC, or any ~~other applicable regulator approving the Conversion~~Governmental 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 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 (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 and as of~~ Party since the latest ~~date~~ dates as of which such condition is set forth in the ~~Prospectus~~Offering Circular, other than transactions referred to or contemplated therein; (ii) ~~none of the~~ no Primary ~~Parties~~ Party shall have received from ~~any Governmental Entity~~ the FDIC, the GDBF, the FRB or the 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 ~~in all material respects~~ (which direction, if any, subject to Section 23, shall have been disclosed to the Agent) ~~and which~~ or that would be reasonably ~~be expected~~ likely to have a Material Adverse ~~Effect~~Effect on the Oconee Parties, taken as a whole, or on Elberton, as applicable; (iii) ~~none of~~ the Primary Parties shall not have been in default (nor shall an event have occurred ~~which~~that, 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; (iv) 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 agency~~Governmental Authority, not disclosed in the ~~Prospectus~~Offering Circular, shall be pending or, to the knowledge of any of the Primary Parties, threatened against any ~~of the~~ Primary ~~Parties~~ Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 Offeringsuch Primary Party; 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~~Company. (il) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA, LLP~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA, 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 on the consolidated financial statements and related notes of the ~~Mid-Tier Holding~~ Company as of December 31, ~~2014~~2022 and 2021, ~~June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related ~~published rules and regulations~~ consolidated statements of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shcomprehe

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~~ 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 Offering and at and as of the Closing ~~Date~~Time, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 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 shall have been approved by the 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 or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefore~~ therefor initiated or, to ~~the knowledge~~ any of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal or state authority~~governmental body. The Conversion Application shall have been approved by the Department. (cb) At the Closing ~~Date~~Time, the Agent shall have ~~received the favorable opinion~~received: (1) An opinion or opinions, dated as of the Closing ~~Date and addressed to the Agent and for its benefit~~Time, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇~~▇▇▇▇▇▇▇ & ▇▇▇~~▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ , P.C., as counsel to ~~Section 8(d) of this Agreement~~the PPHI Parties, in form and substance ~~as attached hereto as Exhibit C.~~satisfactory to counsel for the Agent, to the effect that: (di) 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 ~~Closing Date~~time that the Registration Statement became effective, the ~~Agent shall have received~~ Registration Statement, including the ~~favorable~~ Prospectus contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation, as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 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 an investment company under the Investment Company Act of 1940, as 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, ~~dated~~ such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the ~~Closing Date and addressed~~ 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 be limited to the laws of the Commonwealth of Pennsylvania and ~~for its benefit~~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 ~~▇▇▇▇▇▇▇▇▇▇ ▇~~any other state. (2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, representatives of ▇▇▇▇▇▇▇ ~~LLP~~& ▇▇▇, ~~special counsel~~ PC participated in conferences with certain officers of and other representatives of the PPHI Parties, representatives of the independent public accounting firm for the ~~Agent~~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)) ▇▇▇▇▇▇▇ & ▇▇▇, 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 statements therein, in ~~form~~ 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 ~~substance as reasonably acceptable~~ the Prospectus, and counsel need not express any belief with respect to the ~~Agent~~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). (e3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇~~▇▇▇ LLP~~ , PC addressed to the PPHI Parties and the Agent relating to the Offering, 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 Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 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 ~~Date~~Time, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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 or business ~~or prospects~~ of the ~~Primary~~ PPHI 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 PPHI Parties independently, or of the ~~Primary~~ PPHI Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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 ~~Date~~Time; (ivv) each of the ~~Primary~~ PPHI Parties ~~have~~ has complied in all material respects with all ~~material~~ agreements and 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 810; (vvi) no stop order suspending the effectiveness of the Registration Statement has been ~~initiated~~ issued or, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened~~ is threatened, by the Commission or any ~~state authority~~other governmental body; (vivii) no order suspending the ~~Conversion~~Offering, the ~~Offering~~ 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 ~~Federal Reserve Board~~ Department, the Commission, or any other federal or state authority; and (~~vii~~viii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator approving~~ Director with respect to the ~~Conversion~~Conversion 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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. (me) At or prior to the Closing ~~Date~~Time, the ~~Agent~~ Department shall ~~receive: (i)~~ have issued a ~~copy~~ letter or order to PPIX, PCA, and PIPE, which shall have the force of ~~the letters from the Federal Reserve Board and any other applicable regulator~~ approving the Conversion ~~Application~~ and Offering, and the ~~Holding Company Application and authorizing~~ Department shall have issued a letter or order to ICG, which shall have the ~~use~~ force of approving the ~~Prospectus; (ii) a copy~~ acquisition of ~~the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence~~ control of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably requestHoldCo by ICG. (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 FINRA or by order of the Commission or any other governmental authority other than temporary trading ~~halts~~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 a general moratorium on the withdrawal of deposits from ~~commercial banks~~ federally-insured financial institutions declared by either federal or state authorities; or (iii) ~~the engagement by the United States in~~ any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ any of (i) through (iii) herein, in the judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering or the delivery~~ sale 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~~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 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 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 ~~Conversion~~ Reorganization Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the ~~Federal Reserve Board~~ OTS, the SEC or any other ~~applicable regulator~~Governmental Authority. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the ~~Conversion Application and the Holding Company Application shall have been~~ Reorganization Applications approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & S▇▇▇▇▇~~▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Association, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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~~United States. 2. The Company and the MHC have the corporate power and authority to own, ~~not misleading; (ii) since the respective dates~~ 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, 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 ~~event has occurred that should have been~~ 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 ~~an amendment or supplement to~~ the General Disclosure Package and the Prospectus ~~that~~ under the caption “Capitalization,” no Common Stock 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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 (except for subscription rights as set forth in the 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 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 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 ~~Primary Parties~~ 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 taken by or 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 to such counsel’s knowledge, is threatened to revoke any such authorization or approval. 9. Subject to the 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 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 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 Rule 424(b) or Rule 433; no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s knowledge, threatened by the SEC. 11. At the time the Reorganization Applications, including the Plan, the Prospectus and Members’ Proxy Statement contained therein, were approved by the 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 (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 and the Reorganization Regulations. 13. The terms and provisions of the Common Stock of the Company conform, in all material respects, to the description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, 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 governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or issuance of the Shares, (iii) seeking to prevent the issuance of the Foundation Shares, or (iv) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein. 15. None of the Association, the Company or the MHC are required to be registered as an investment company under the Investment Company Act of 1940, as amended. 16. To such counsel’s knowledge, none of the Association, the Company or the MHC 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. 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 ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Reorganization Regulations; ~~(v) no stop order suspending the effectiveness of the Registration Statement has been initiated or~~and, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~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 (ga) ~~None~~ 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 the Association, the Company or the MHC is a party that is filed as an exhibit to the Registration Statement, (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 Association, or (c) result in any material 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 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 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 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 Reorganization process in the Prospectus under the caption “The Reorganization and 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 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 Parties and certificates of public officials. Such counsel’s opinion shall ~~have sustained~~be limited to matters governed by federal laws. For purposes of such opinion, ~~since the date of the latest financial statements included in the Registration Statement~~no proceedings shall be deemed to be pending, 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, no order or ~~decree, otherwise than as set forth in the Registration Statement and the Prospectus~~stop order shall be deemed to be issued, and ~~since the respective dates as~~ no action shall be deemed to be instituted unless, in each case, a director or executive officer 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 present laws be changed 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 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, 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~FRB), 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 ~~Federal Reserve Board~~ FRB or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and the Conversion Application and~~ SEC, the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB and any other applicable regulator, and the Charter Conversion Application shall have been approved by the 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB, the NYSDFS, the FDIC or any other ~~federal~~ 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 ~~authority~~court 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~~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 Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, special counsel for the 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Lake Shore Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable to~~ request and the ~~Agent. (e) A blue sky memorandum from ▇~~opinion of ▇▇▇▇ ▇▇▇▇▇▇ ~~LLP~~ delivered pursuant to subsection (c) above. (e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ relating to the Offering, 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~~ 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 ~~Counsel~~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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Lake Shore Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the 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 and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Lake Shore Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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 Parties~~their knowledge, threatened by the ~~Commission~~ SEC or any state or federal authority; (vixii) no order suspending the Conversion, the 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~~their knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the FRB, the OCC, the FDIC or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 FRB or any other applicable ~~regulator approving~~ regulatory agency; and (xv) no order suspending the ~~Conversion~~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~~ 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 ~~Prospectus~~General 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 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~~ Lake Shore Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Lake Shore Party since the latest dates as of which the financial condition of the Lake Shore Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the ~~Primary~~ Lake Shore Parties shall have received from ~~any Governmental Entity~~ the OCC or the FRB 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~~direction (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Lake Shore Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; 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 ~~BDO USA~~▇▇▇▇▇, ~~LLP~~▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~▇▇▇▇▇, ~~LLP~~ ▇▇▇▇ & ▇▇▇▇▇▇▇, 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 financial statements and related notes of the Mid-Tier ~~Holding~~ Company as of December 31, ~~2014~~2024, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for the ~~six months~~ year ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Mid-Tier Company prepared by the Mid-Tier Company, a reading of the minutes of the meetings of the Boards of Directors of each of the 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 financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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 consolidated long-term or short-term debt of the Mid-Tier ~~Holding~~ Company; or (C), ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~except as set forth in said letter, ~~or decreases~~ there was any decrease in the consolidated total assets, total loans, the allowance for ~~loan~~ credit losses, total ~~deposits~~ deposits, or total ~~equity~~ capital accounts of the Mid-Tier ~~Holding~~ Company ~~and (B) during the period from~~ at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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~~ ; or (D) there was any decrease in ~~the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in~~ consolidated total interest income, net interest income, net interest income after provision for ~~loan~~ credit losses, non-interest income ~~before income tax expense~~ or net income or increase in non-interest expense or the provision for credit losses of the Mid-Tier ~~Holding~~ 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 (i), they have compared with the general accounting records of the Mid-Tier ~~Holding Company~~Company and the Bank, which are subject to the internal controls of the Mid-Tier ~~Holding Company~~Company and the Bank, the accounting system and other data prepared by the Mid-Tier ~~Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shreas

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 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement~~OTS, ~~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, 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 benefit~~Date, of ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ , P.C. and/or local counsel acceptable to ~~Section 8(d) of this Agreement~~the Agent, in form and substance ~~as attached hereto as Exhibit C.~~satisfactory to the Agent and counsel for the Agent to the effect that: (di) At The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing 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 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 OTS; and at the Closing Date, the ~~Agent shall~~ 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 jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have ~~received~~ a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the ~~favorable opinion~~laws of the United States, ~~dated~~ 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 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 Holding Company, by the laws of the State of Maryland. 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 Members 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 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 and the Prospectus, the Members’ 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 be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, 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 “The Conversion and Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “The Conversion and Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ParenteBeard 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~~ Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and ~~addressed~~ 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 in approving the Applications filed with the OTS. (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,” “The Conversion and Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Colonial Bankshares, Inc.,” “Restrictions on Acquisition of Colonial Financial Services, Inc.,” “Description of Capital Stock of Colonial Financial Services, Inc. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended. (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 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, 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 the Agent ~~and~~ 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 shall also state that the Agent’s counsel may rely for purposes of its ~~benefit~~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~~, ~~special counsel for the Agent,~~ P.C. in form and substance ~~as reasonably acceptable~~ to the effect 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 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 (~~e) A blue sky memorandum from~~ without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP relating~~ & ▇▇▇▇▇▇, 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 ~~Offering~~attention of Luse, ~~including Agent’s participation therein~~Gorman, ~~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. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP shall state~~ & ▇▇▇▇▇▇, P.C. to believe that 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, Registration Statement at the time it was declared effective by 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at Commission and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 the Conversion Regulations, (ii) stating in effect or 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shGeneral Disclosu

Appears in 2 contracts

Sources: Agency Agreement (Colonial Financial Services, Inc.), Agency Agreement (Colonial 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, 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 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~Regulations, 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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Barnes & Thornburg, special counsel for the ~~Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~Company ▇▇▇ ▇~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~he Bank, in form and substance ~~as attached hereto as Exhibit C.~~to the effect that: (di) 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 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. 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 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 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 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 ~~Closing Date~~time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the ~~Agent shall have received~~ Conversion Application, including the ~~favorable opinion~~Prospectus contained therein, ~~dated~~ complied as to form in all material respects with the requirements of the ~~Closing Date~~ Conversion Regulations, federal and ~~addressed~~ 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 the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agentwhich no opinion need be rendered). (exii) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to~~ At the ~~Offering~~time that the Registration Statement became effective, ~~including Agent’s participation~~ (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, ~~shall have been furnished prior~~ as to which no opinion need be rendered), complied as to form in all material respects with the ~~mailing~~ requirements of the ~~Prospectus~~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 Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 requirements of the ~~Shares under applicable state securities~~ 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 Date~~all 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 respective dates as of which information is given description thereof contained in the Registration ~~Statement~~Statement 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, no event has occurred that should have been set forth~~ Prospectus of such documents and exhibits is accurate in ~~an amendment or supplement~~ all material respects and fairly presents the information required to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown. (~~iii~~xvi) ~~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; (iv) the Primary Parties have complied~~ The Plan complies in all material respects with all ~~material agreements~~ applicable federal and ~~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~~such counsel's Actual Knowledge, ~~including the conditions contained in this Section 8; (v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering 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 Agent~~any 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 Parties considered as one enterprise~~Company and the Bank on a consolidated basis; to such counsel's Actual Knowledge, ~~from~~ the execution and as delivery of this Agreement, the incurrence of the ~~latest date 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 ~~Prospectus~~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 ~~transactions referred to or contemplated therein; (ii) none~~ the establishment of the ~~Primary Parties shall have received~~ 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, 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 ~~any Governmental Entity any direction (oral~~ the OTS or ~~written)~~ the FDIC to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 Partiesits respective business. (ixxi) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial The 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-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to~~ under the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, captions "Regulation," "The Conversion," "Restrictions 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing Acquisition of the Holding Company; " and ~~(viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent~~ "Description of Capital Stock," to the ~~date hereof~~extent that such information constitutes matters of law, ~~there shall not have occurred any~~ 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 ~~following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or~~ Conversion process in the ~~over-the-counter market~~Prospectus under the caption "The Conversion" to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or ~~quotations halted generally on~~ legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the ~~Nasdaq Stock Market,~~ Prospectus of statutes or ~~minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been~~ regulations are accurate summaries and fairly present the information required ~~by either of such exchanges or by order~~ to be shown. The information under the caption "The Conversion-Principal Effects of the ~~Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on~~ Conversion--Tax Effects" has been reviewed by such counsel and fairly describes the ~~operations of commercial banks~~opinions rendered by them to the Company and the Bank with respect to such matters. In addition, ~~or a general moratorium on~~ such counsel shall state that during the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 preparation of the ~~Shares on the terms and in the manner contemplated in~~ 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 (orelying 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 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) ~~At or prior to the Closing Date, counsel to the Agent sh~~contained an untrue statement of a mate

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 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ Commissioner, the FRB and ~~any other applicable regulator~~the 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 ~~Federal Reserve Board~~ Commissioner or ~~any other applicable regulator~~the FDIC. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion ~~Application~~ Applications and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ Commissioner, the FDIC 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; 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ Commissioner, the FDIC or ~~any other federal or state authority~~the 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the 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~~ A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 Melrose Parties independently, or of the ~~Primary~~ Melrose Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Melrose Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ Commissioner, the FDIC, the FRB or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ Melrose Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ Commissioner or ~~any other applicable regulator approving~~ the ~~Conversion~~FDIC. (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 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~~ Melrose Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Melrose Parties shall have received from ~~any Governmental Entity~~ the Commissioner, the FDIC or the FRB 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Melrose Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingMelrose 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 ~~BDO USA, LLP~~▇▇▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA, 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~~ Bank as of December 31, ~~2014, June 30, 2014 and June 30,~~ 2013 and ~~the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013~~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 ~~SEC~~ Commissioner, the FDIC and the FRB and the 1933 Act; (ii) stating ~~that~~ 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 Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Melrose Parties 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) 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 Commissioner, the FDIC and 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (kj) 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 ~~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 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. (mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ Commissioner approving the Massachusetts Conversion ~~Application and the Holding Company~~ Application and authorizing the use of the Prospectus; (ii) a copy of the ~~order~~ 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; (iv) confirmation that the Commission ~~that~~ declared the Registration Statement effective; (~~iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv~~v) a certificate from the ~~New Jersey Banking Department~~ Commissioner evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-~~New York~~ Boston evidencing the Bank’s membership therein; (~~vii~~viii) a certificate from the Maryland ~~State~~ Department of Assessments ~~and~~ & Taxation evidencing the good standing of the Holding ~~Company;~~ Company and (~~viii~~ix) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (om) At or prior to the Closing Date, counsel to the Agent shshall 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, 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~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 ~~Federal Reserve Board~~ FRB or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and the Conversion Application and~~ SEC, the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB and any other applicable regulator, and the amendments to the Bank’s charter shall have been approved by the 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB, the OCC or any other ~~federal~~ 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 ~~authority~~court 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~~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 Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, special counsel for the Cullman 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Cullman Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable to~~ request and the ~~Agent. (e) A blue sky memorandum from ▇~~opinion of ▇▇▇▇ ▇▇▇▇▇▇ ~~LLP~~ delivered pursuant to subsection (c) above. (e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ relating to the Offering, 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~~ 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 ~~Counsel~~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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Cullman Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Cullman Parties independently, or of the ~~Primary~~ Cullman Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Cullman Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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 Parties~~their knowledge, threatened by the ~~Commission~~ SEC or any state or federal authority; (vixii) no order suspending the Conversion, the 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~~their knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the FRB, the OCC, the FDIC or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 FRB or any other applicable ~~regulator approving~~ regulatory agency; and (xv) no order suspending the ~~Conversion~~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~~ 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 ~~Prospectus~~General 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 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~~ Cullman Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Cullman Party since the latest dates as of which the financial condition of the Cullman Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the ~~Primary~~ Cullman Parties shall have received from ~~any Governmental Entity~~ the OCC or the FRB 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~~direction (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Cullman Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; 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 ~~BDO USA,~~ ▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014~~2020 and 2019, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Cullman Parties 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) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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 or short-term debt of the ~~Mid-Tier Holding Company~~Bank; or (C), ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~except as set forth in said letter, ~~or decreases~~ there was any decrease in the total assets, total loans, the allowance for loan losses, total ~~deposits~~ deposits, or total ~~equity~~ capital accounts of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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,~~ ; or (D) there ~~were~~ was any ~~decreases, as compared with the corresponding period in the preceding fiscal year,~~ decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income ~~before income tax expense~~ or net income or increase in non-interest expense or the provision for loan losses of the ~~Mid-Tier Holding Company~~Bank, 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shre

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 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~OCC), 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 ~~Federal Reserve Board or any other applicable regulator~~OCC to the reasonable satisfaction of Agent and its counsel. (b) ~~The Registration Statement shall have been declared effective by~~ Prior to the ~~Commission and~~ Closing Date, the ~~Conversion Application and the Holding Company Application~~ Plan shall have been approved by the ~~Federal Reserve Board~~ 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 Proxy Statement. (c) The Applications (other than the Holding Company Waiver Request) shall have been approved by the 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, 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 ~~Commission~~SEC, FRB, the ~~Federal Reserve Board or~~ OCC, any other ~~federal~~ state authority or ~~state authority~~Governmental 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 benefit~~Date, of ▇▇L▇▇▇ ▇▇▇▇▇▇ ~~LLP, special~~ in form and substance reasonably satisfactory to the Agent and counsel for the ~~Primary~~ 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~~, which~~ . The opinion of such counsel for the Town Parties shall ~~also~~ 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▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ 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~~ reasonably satisfactory to the Agent and ~~for its benefit~~Agent’s counsel, ~~of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable~~ to the ~~Agent. (e) A blue sky memorandum from ▇▇~~effect that during the preparation of the Registration Statement and the Prospectus, L▇▇▇ ▇▇▇▇▇▇ ~~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 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, 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 Offering, including Agent’s participation therein, shall have been furnished to the Company prior to the mailing of the ~~Prospectus, to the Holding Company~~ Prospectus with a copy thereof addressed to Agent or upon which ▇▇L▇▇▇ ▇▇▇▇▇▇ ~~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~~laws. (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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Registration Statement and Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Town Parties ~~independently~~and the conditions set forth in this Section 10 have been satisfied; (iii) since the respective dates as of which information is given in 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 considered as one enterprise~~Bank, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Town Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the ~~Conversion~~Conversion Merger, the 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 ~~Federal Reserve Board~~ 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 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 authority~~otherwise, 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 (~~vii~~except 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 Parties~~Commonwealth, ~~no person has sought to obtain regulatory or judicial review of~~ threatened by the ~~final action of the Federal Reserve Board~~ OCC, or any ~~other applicable regulator approving the Conversion~~Governmental 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 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 (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 and as of~~ Party since the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) ~~none of the~~ no Primary ~~Parties~~ Party shall have received from ~~any Governmental Entity~~ the FRB or 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 ~~in all material respects~~ (which direction, if any, shall have been disclosed to the Agent) ~~and~~ or which would be reasonably ~~be expected~~ likely to have a Material Adverse ~~Effect~~Effect on the Town Parties, taken as a whole, or on Commonwealth, as applicable; (iii) ~~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 ~~material~~ outstanding indebtedness; (iv) 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 agency~~Governmental Authority, not disclosed in the Prospectus, shall be pending or, to the knowledge of any of the Primary Parties, threatened against any ~~of the~~ Primary ~~Parties~~ Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 Offeringsuch Primary Party; 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~~Company. (il) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA,~~ C▇▇▇▇ H▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ 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 Holding~~ Company as of December 31, ~~2014~~2013, ~~June 30, 2014 and June~~ September 30, 2013 and 2012, and the ~~six~~ related consolidated statements of operations, comprehensive income (loss), changes in shareholders’ equity and cash flows for the three months ended December 31, ~~2014~~ 2013 and the years ended ~~June~~ September 30, ~~2014~~ 2013 and ~~2013~~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 ~~SEC and the 1933 Act~~SEC; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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)~~ reading of the ~~unaudited interim~~ latest available 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~~Company, a reading of the minutes of the meetings of the ~~Boards~~ Board of Directors ~~and committees of each~~ of the ~~Primary Parties~~ Company and the Board of Directors of 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~~ the audited consolidated financial statements and any unaudited consolidated 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~~Securities Act, the Exchange Act, the Securities Act Regulations, the Exchange Act Regulations, related published rules and ~~GAAP applied on a basis substantially consistent with that~~ regulations of the audited financial statements included in the Prospectus. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 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 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 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 ~~Conversion~~ BHCA, the Massachusetts Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ FRB, the Division or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the ~~Federal Reserve Board~~ FRB and 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, to the knowledge of the ~~Primary~~ 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 ~~Federal Reserve Board~~ FRB, the Division, or any other ~~federal or state~~ regulatory authority. (c) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall have received the favorable ~~opinion~~opinion 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 ▇.▇. ▇▇▇▇▇▇ ~~LLP~~shall have received the favorable opinion and negative assurance statement, ~~special counsel for~~ dated as of the ~~Primary Parties, which shall also state that~~ Closing Date and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇ and for their benefit, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇~~▇ &~~ , counsel for the Agent, in form and substance satisfactory to the Agent and ▇.▇. ▇▇▇▇▇▇~~▇▇ 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.~~. (de) 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 benefit~~Prospectus, ~~of ▇▇▇~~a blue sky memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & relating to the Offering, including the Agent’s participation therein, shall have been furnished to the Holding Company with a copy thereof addressed to the Agent or upon which ▇▇~~▇▇▇▇▇▇ LLP, 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 Offering, 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~~ 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 Counsel~~Agent 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 Eastern Parties independently, or of the ~~Primary~~ Eastern Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Eastern Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ FRB, the Division, or any other ~~federal or state~~ regulatory authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ Eastern Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 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~~ Eastern Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Eastern Parties shall have received from ~~any Governmental Entity~~ 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 ~~in all material respects~~ (which direction, if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Eastern Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingEastern 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 ~~BDO USA,~~ Ernst & Young LLP, dated as of the date hereof and addressed to the ~~Agent: (i)~~ Agent and ▇.▇. ▇▇▇▇▇▇, confirming that ~~BDO USA,~~ Ernst & 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 financial statements and ~~related notes~~ certain financial information contained in each of the ~~Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013~~ Registration Statement 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~~, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act~~; ~~(ii) stating~~ provided that ~~(A) during the period from the date of the recent developments financial information included in~~ the “~~Recent Developments~~cut-off date” ~~section~~ for purposes of ~~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~~ providing “management comfort” with respect to such information, in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company form and ~~(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 business days prior~~ substance reasonably satisfactory to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall ~~receive~~ have received (i) a letter dated the Closing Date, addressed to the ~~Agent~~Agent and ▇.▇. ▇▇▇▇▇▇, ~~(i)~~ confirming the statements made by ~~BDO USA,~~ Ernst & 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 (i) to be a date specified in the letter required by this subsection (i) which~~ for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) ~~stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards~~ a certificate 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)~~ chief financial officer of the ~~unaudited interim financial statements~~ MHC, dated as of the ~~Mid-Tier Holding Company prepared by~~ date hereof and addressed to the ~~Mid-Tier Holding Company~~ Agent and ~~from which~~ ▇.▇. ▇▇▇▇▇▇, confirming the ~~“Recent Developments” information included~~ statements made in the ~~Prospectus was derived, a reading of~~ certificate delivered by such officer pursuant to 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 Prospectusimmediately preceding paragraph. (k) 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 the Massachusetts 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~~209 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. (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~~have received: (i) a copy of the ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ FRB approving ~~the Conversion Application and~~ the Holding Company ~~Application and authorizing the use of the Prospectus~~Application; (ii) a copy of ~~the order~~ a letter from the Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission ~~that~~ declared the Registration Statement effective; (~~iii~~iv) certificates from the ~~Federal Reserve Board~~ Secretary of State of the Commonwealth of Massachusetts evidencing the valid existence and good standing of the ~~MHC~~ MHC, the Holding Company and ~~the Mid-Tier Holding Company~~EIG; (ivv) a certificate from the ~~New Jersey Banking Department~~ Division evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the ~~FHLB-New York~~ FHLBB evidencing the Bank’s membership therein~~; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company~~; and (viii) 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 by order of the Commission or any other governmental ~~authority other than temporary trading halts~~authority; (ii) a general moratorium on the operations of ~~commercial banks,~~ federal or state chartered depository institutions or a general moratorium on the withdrawal of deposits from ~~commercial banks~~ federal or state chartered depository institutions declared by federal or state authorities; (iii) the engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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 shshall 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 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board~~ Division, the FDIC, the FRB and the SEC or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ Division, the ~~date of this Agreement~~FDIC and FRB, ~~or with the Agent’s consent at a later time and date; and~~ as 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~Division, the ~~Federal Reserve Board~~ FDIC, the FRB, the SEC, or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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~~ opinion, dated as of the Closing ~~Date and addressed to the Agent and for its benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~L▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 benefit~~Prospectus, ~~of ▇▇▇▇▇▇▇~~a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ PC relating to the Offering, 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▇▇▇ ▇▇▇▇▇~~▇ LLP 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 Counsel~~Eagle 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ Eagle Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the SEC or any other governmental body; (vi) 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 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; (vi) no order suspending the Conversion~~Division, the ~~Offering or~~ FDIC, the ~~use of~~ FRB, the ~~Prospectus has been issued and no proceedings for that purpose are pending or~~SEC, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the ~~Federal Reserve Board~~ 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 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~~ Eagle Parties ~~considered~~ independently, or the Eagle Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the Conversion Application and a copy of the letters from the ~~Federal Reserve Board~~ Division and ~~any other applicable regulator~~ the FDIC approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the ~~Commission that declared~~ SEC declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the ~~Federal Reserve Board evidencing~~ FRB approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Cincinnati evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ NASDAQ Stock ~~Market~~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~~ SEC or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing date, none of the Eagle Parties will have received from the FRB, the Division or the ~~delivery of the Shares on the terms and~~ FDIC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ FINRA shall have confirmed that it has not raised any objection with respect to the ~~Closing Date~~fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares. (p) All such opinions, ~~counsel~~ 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 shand 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.

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 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 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 ~~Conversion~~ MHC Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~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 ~~Federal Reserve Board~~ FRB, the OCC or the FDIC or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ SEC, the ~~Conversion Application~~ MHC Notice and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB, the OCC Applications shall have been approved by the OCC and the FDIC Application shall have been approved 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, to the knowledge of the Primary Parties,~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB, the OCC or the FDIC or any other ~~federal~~ 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 ~~authority~~court 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 ~~benefit~~benefit 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 ~~Primary Parties, which shall also state that ▇▇▇▇▇~~▇▇▇▇▇ ~~▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~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, ▇▇▇▇▇▇▇▇~~▇▇ ▇▇▇▇~~, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the ▇▇▇▇▇ Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable~~ request and the opinion of ▇▇▇▇▇ Lord LLP delivered pursuant to ~~the Agent~~subsection (c) above. (e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇▇ ~~▇▇▇▇▇▇~~ Lord LLP relating to the Offering, 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇~~ 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ ▇▇▇▇▇ Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the ▇▇▇▇▇ Parties independently, or of the ~~Primary~~ ▇▇▇▇▇ Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ ▇▇▇▇▇ Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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; (vixii) no order suspending the ~~Conversion~~Reorganization, the 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 ~~Federal Reserve Board~~ SEC, the FRB, the OCC, the FDIC or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to the knowledge of the ~~Primary~~ ▇▇▇▇▇ Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ FRB approving the ~~Conversion~~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 OCC or the FDIC 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 ~~Prospectus~~General 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 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 considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 ▇▇▇▇▇ Party since the latest dates as of which the financial condition of the ▇▇▇▇▇ 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 ~~any Governmental Entity~~ the OCC or the FRB 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the ▇▇▇▇▇ Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 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 ~~BDO USA,~~ Mazars USA LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014~~2016 and 2015, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the ▇▇▇▇▇ Parties 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) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and the 1934 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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 or short-term debt or non-performing assets of the ~~Mid-Tier Holding Company~~Bank; or (C), ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~except as set forth in said letter, ~~or decreases~~ there was any decrease in the total assets, total loans, the allowance for loan losses, total ~~deposits~~ deposits, or total ~~equity~~ capital accounts of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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,~~ ; or (D) there ~~were~~ was any ~~decreases, as compared with the corresponding period in the preceding fiscal year,~~ decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income ~~before income tax expense~~ or net income or increase in non-interest expense or the provision for loan losses of the ~~Mid-Tier Holding Company~~Bank, 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA,~~ 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shlette

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,~~ 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ and the OCC or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on~~ and the OCC, as applicable, as of the date of this ~~Agreement~~Agreement 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~Federal Reserve, the ~~Federal Reserve Board~~ OCC or any other ~~federal~~ regulatory authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 ~~benefit~~benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇▇ ▇▇▇▇▇~~▇ LLP~~▇, ~~special~~ PC, in form and substance satisfactory to the Agent and counsel for the ~~Primary~~ 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 ~~also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇~~receive a letter from ▇▇▇▇▇▇ & ▇▇▇▇▇~~▇▇▇ 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~~ PLLC dated 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~~Agent, ~~of ▇▇▇▇▇▇▇▇▇▇ ▇▇~~such letter (i) confirming that ▇▇▇▇▇▇ & ▇▇▇▇▇~~▇▇▇ LLP~~, ~~special counsel for~~ PLLC is a firm of independent public accountants within the ~~Agent~~meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in ~~form and substance as reasonably acceptable to~~ effect that in the ~~Agent. (e) A blue sky memorandum from ▇▇▇▇▇~~ opinion of ▇▇▇▇▇▇ ~~LLP relating~~ & ▇▇▇▇▇, PLLC, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the ~~Offering~~applicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, ~~including Agent’s participation therein~~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, ~~shall have been furnished~~ 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 ~~mailing~~ 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 ~~Holding Company~~ 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 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 ~~copy thereof addressed to Agent or upon which ▇▇▇▇▇~~ letter from ▇▇▇▇▇▇ ~~LLP shall state~~ & ▇▇▇▇▇, PLLC dated the ~~Agent may rely. The blue sky memorandum will relate~~ 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 law~~Closing 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 Counsel~~HF 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (~~iii~~3) 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; ; (iv4) the ~~Primary~~ HF Parties have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v5) 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 or~~issued and, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for ~~that~~ any such purpose ~~are pending or, to the knowledge of the Primary Parties,~~ have been initiated or threatened by the Federal ~~Reserve Board~~ Reserve, the OCC or any other federal or state authority; ~~and~~ and (~~vii~~7) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ or ~~any other applicable regulator~~ the OCC in approving the Applications or 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 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~~ HF Parties ~~considered~~ independently, or the HF Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ parties will have received (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Holding Company Application; (ii) a copy of the letter from the OCC approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus~~Application; (iiiii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Topeka evidencing the ~~good standing of the~~ Bank’s membership therein; (v) a certificate from the ~~FDIC~~ Secretary of State of the State of Maryland evidencing the ~~Bank’s insurance~~ valid existence of ~~accounts~~the Company; (vi) a ~~certificate from~~ certified copy of each of the ~~FHLB-New York evidencing the Bank’s membership therein~~HF Parties’ Charter and Bylaws, as applicable; and (vii) ~~a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such~~ any other ~~documents and certificates as the~~ document that Agent may reasonably request. (nl) 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; : (i1) a suspension or limitation in trading in securities generally on the New York Stock ~~Exchange (~~Exchange, the ~~“NYSE”)~~ NASDAQ, or in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ 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; ; (ii2) a general moratorium on the operations of ~~commercial banks,~~ 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~~3) a material adverse change in the ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing Date, none of the HF Parties will have received from the Federal Reserve or the ~~delivery of the Shares on the terms and~~ OCC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the ~~Closing Date, counsel~~ provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any HF Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such HF Party to the Agent as to the statements made therein.

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,~~ 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 OCC, the Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the OCC and Federal ~~Reserve Board not later than 5:30 p.m. on the date of this Agreement~~Reserve, ~~or with the Agent’s consent at a later time and date; and~~ respectively, 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~OCC, the Federal ~~Reserve Board~~ Reserve, the Commission, or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 benefit~~Prospectus, ~~of ▇▇▇▇▇▇~~a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ PC relating to the Offering, 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 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 Counsel~~NB 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ NB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) 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 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; (vi) no order suspending the Conversion~~OCC, the ~~Offering or~~ Federal Reserve, the ~~use of the Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the ~~Federal Reserve Board~~ OCC in approving the 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 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~~ NB Parties ~~considered~~ independently, or the NB Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the Conversion Application and a copy of the letters from the ~~Federal Reserve Board and any other applicable regulator~~ OCC approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Indianapolis evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ NASDAQ Stock ~~Market~~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 ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing date, none of the NB Parties will have received from the Federal Reserve, the OCC or the ~~delivery of the Shares on the terms and~~ FDIC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ FINRA shall have confirmed that it has not raised any objection with respect to the ~~Closing Date~~fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares. (p) All such opinions, ~~counsel~~ 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 shand 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.

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~~ SBI Parties herein contained are, at and as of the commencement of the 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 and the Charter Conversion imposed upon them by the Federal ~~Reserve Board~~ Reserve, the OCC and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on~~ and the ~~date of this Agreement~~Charter Conversion Application shall have been approved by the OCC 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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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~~ received: (1) The opinion, dated as of the ~~favorable opinion~~Closing 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 ~~benefit~~letter delivered pursuant to subsection (d) of this Section 11, ~~of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for~~ the ~~Primary Parties~~“specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall ~~also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ not be more than three business days prior to ~~Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.~~the 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special~~ counsel for the ~~Agent, in form and substance as~~ Agent may reasonably ~~acceptable~~ require for the purpose of enabling them to advise the Agent with respect to the ~~Agent~~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. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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 Counsel~~SBI 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ SBI Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by SBI, or 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; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, the OCC or any other ~~federal or state~~ governmental authority~~; and~~ ; (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application ~~and authorizing~~ or to enjoin the ~~use of the Prospectus~~Conversion; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shand

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,~~ 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 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 IDFI Regulations, the Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ Board, the IDFI, the FDIC, and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal Reserve Board ~~not later than 5:30 p.m. on~~ and the IDFI, as applicable, as of the date of this ~~Agreement~~Agreement 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, 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 ~~Federal Reserve Board~~ IDFI or the FDIC or any other ~~federal~~ regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or ~~state authority~~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 ~~benefit~~benefit and upon which Agent's counsel may rely for purposes of delivering its legal opinion (if any), of Silver, F▇▇▇▇▇▇▇, T▇▇▇ & T▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, 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 opinion~~receive a letter from BKD, LLP dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in ~~form and substance as reasonably acceptable~~ 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 ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At or prior to Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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. (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 Counsel~~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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the Primary Parties have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) 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 or~~issued and, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for ~~that~~ any such purpose ~~are pending or, to the knowledge of the Primary Parties,~~ have been initiated or threatened by the Federal Reserve ~~Board~~ Board, the Commission, the IDFI, the FDIC or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ Board, the 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 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 Parties ~~considered~~ independently, or the Primary Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 ~~letters~~ letter from the Federal Reserve Board ~~and any other applicable regulator~~ approving ~~the Conversion Application and~~ the Holding Company Application ~~and authorizing~~ including the ~~use~~ establishment of the ~~Prospectus~~Foundation; (ii) a copy of the letter from the IDFI approving the IDFI Application; (iii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the ~~FHLB-New York~~ FHLBs evidencing the Bank’s ~~membership~~ memberships therein; (vi) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; (vii) a ~~certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing~~ certified copy of the ~~Holding Company~~Foundations’ Charter and Bylaws; and (viii) ~~such~~ any other documents ~~and certificates as the~~ that Agent ~~may~~ shall reasonably request. (nl) 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 (~~Exchange, the ~~“NYSE”)~~ NASDAQ, or in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ 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 ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve Board, the IDFI, or the ~~delivery of the Shares on the terms and~~ FDIC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the ~~Closing Date, counsel~~ provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.

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 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇~~ LLP, special counsel for the Agent, in form and substance as ~~reasonably acceptable to the Agent.~~attached hereto as Exhibit D. (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 OBA Parties independently, or of the ~~Primary~~ OBA Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ OBA Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ OTS or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ OBA Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board 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 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~~ OBA Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ OBA Parties shall have received from ~~any Governmental Entity~~ the 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the OBA Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingOBA 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 ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 Holding Company~~ MHC as of ~~December 31, 2014,~~ June 30, ~~2014~~ 2009 and ~~June 30~~2008, ~~2013~~ and ~~the six months ended December 31, 2014 and~~ for each of the years in the three-year period ended June 30, ~~2014 and 2013~~2009, 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 ~~SEC~~ OTS and the 1933 Act; (ii) stating ~~that~~ 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 MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the OBA Parties 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) 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 OTS 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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~~ borrowings of the ~~Mid-Tier Holding Company~~MHC, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the ~~total assets, total loans, the allowance for loan losses, total deposits or total equity~~ net assets of the ~~Mid-Tier Holding Company and (B) during the period from~~ MHC at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~MHC, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~MHC, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~MHC, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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 ~~Conversion~~ Code of Federal Regulations, Section 563b.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 ~~Conversion~~ 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. (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 letters from the ~~Federal Reserve Board and any other applicable regulator~~ OTS approving the ~~Conversion Application and~~ Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; (iii) certificates from the ~~Federal Reserve Board~~ OTS evidencing the valid existence of the Bank, the MHC and ~~the Mid-Tier Holding Company~~OBA Bancorp; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Atlanta evidencing the Bank’s membership therein; ~~(vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company;~~ and (~~viii~~vi) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, counsel to the Agent shshall 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on the date of this Agreement~~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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~L▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 opinion~~receive a letter from BKD, LLP dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~GB 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ GB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 ~~initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ 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 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 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~~ GB Parties ~~considered~~ independently, or the GB Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi~~) a certificate from the FHLB-New York evidencing the Bank’s membership therein; , (~~vii~~v) a certificate from the ~~Maryland State Department of Assessments and Taxation~~ FDIC evidencing the ~~good standing~~ Bank’s and Commercial Bank’s insurance of ~~the Holding Company;~~ accounts, and (~~viii~~vi) ~~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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing date, none of the GB Parties will have received from the Federal Reserve, the 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 ~~Offering~~ 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 to counsel for the ~~delivery of~~ Agent shall be deemed a representation and warranty by such GB Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the ~~Closing Date~~mailing of the Prospectus, ~~counsel~~ to GBI 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. (p) To the extent a sale or other disposition or transfer of shares of common stock or other securities of 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 B hereto shall deliver to the Agent sha “lock-up” agreement, each in substantially the form of Exhibit C hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of GBI on or before the date hereof and shall be in full force and effect on the Closing Date.

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~~ Home Federal Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ OCC and ~~any other applicable regulator~~the 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 ~~Federal Reserve Board or any other applicable regulator~~OCC and the FRB to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ SEC, the Conversion Application shall have been approved by the OCC, and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ OCC, the FRB or any other ~~federal~~ 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 ~~authority~~court 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~~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 Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~L▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, 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 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 ~~▇▇▇▇▇▇~~J▇▇▇▇ ~~▇▇▇▇▇▇▇▇ & ▇▇~~▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Home Federal Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable to~~ request and the ~~Agent. (e) A blue sky memorandum from ▇▇~~opinion of L▇▇▇ ▇▇▇▇▇▇ ~~LLP~~ delivered pursuant to subsection (c) above. (e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ relating to the Offering, 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▇▇▇ ▇▇▇▇▇▇ ~~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~~ 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 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 and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Home Federal Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ SEC, the OCC, the FRB or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~viii) to the knowledge of the ~~Primary~~ Home Federal Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OCC approving the ~~Conversion~~Plan 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 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~~ Home Federal Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Home Federal Party since the latest dates as of which the financial condition of the 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 ~~any Governmental Entity~~ the OCC or the FRB 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Home Federal Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 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~~ Home Federal Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA,~~ BKD LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014, June 30,~~ 2014 and ~~June 30~~2015, ~~2013~~ and for each of the ~~six months~~ years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (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 financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Home Federal Parties 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) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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-Tier Holding Company~~FHLB borrowings, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, ~~the allowance for loan losses~~total deposits, ~~total deposits~~ or ~~total~~ equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest balance sheet included in the Prospectus; or (D) there was any decrease in net income (loss) or net interest income, non-interest income or increase in non-interest expense of the Bank, 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 ~~to a specified date not more than three business days~~ and ended on the latest month end prior to the date of the ~~Prospectus, except as has been described in the Prospectus, there were any decreases,~~ Prospectus as compared ~~with~~ to the corresponding period in the preceding ~~fiscal~~ year~~, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA,~~ 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 (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) At the Closing Date, the Holding Company shall receive a letter from ~~RP Financial~~K▇▇▇▇▇ & 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 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 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 ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ OCC approving the Conversion ~~Application and the Holding Company Application~~ Application, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iii) a copy of the order from the ~~Commission that declared~~ SEC declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Chicago evidencing the Bank’s membership therein; (~~vii~~vi) a ~~certificate from the Maryland State Department~~ certified copy of ~~Assessments and Taxation evidencing the good standing~~ each of the Holding Company’s and the Bank’s Articles of Incorporation, Charter and Bylaws, as applicable; and (~~viii~~vii) ~~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 other than temporary trading halts~~authority; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 savings 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 shloan associations

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, 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 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 Massachusetts Regulations, the Conversion and Related Regulations and the Control Act Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~Division, 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 ~~Federal Reserve Board~~ Division, the FDIC, the FRB or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and the Conversion Application and~~ SEC, the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ Division, the FDIC, the FRB or any other ~~federal~~ 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 ~~authority~~court 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 ~~benefit~~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 Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, special counsel for the 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, ▇▇▇▇▇▇▇▇~~▇▇ ▇▇▇▇~~, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Winchester Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable to~~ request and the ~~Agent. (e) A blue sky memorandum from ▇~~opinion of ▇▇▇▇ ▇▇▇▇▇▇ ~~LLP~~ delivered pursuant to subsection (c) above. (e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ relating to the Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ ~~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 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 ~~Counsel~~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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Winchester Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Winchester Parties independently, or of the ~~Primary~~ Winchester Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Winchester Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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 Parties~~their knowledge, threatened by the ~~Commission~~ SEC or any state or federal authority; (vixii) no order suspending the ~~Conversion~~Reorganization, the 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~~their knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the Division, the FDIC, the FRB or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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, the FDIC or any other applicable ~~regulator approving~~ regulatory agency; and (xv) no order suspending the ~~Conversion~~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 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 ~~Prospectus~~General 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 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~~ Winchester Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Winchester Party since the latest dates as of which the financial condition of the Winchester Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the ~~Primary~~ Winchester Parties shall have received from ~~any Governmental Entity~~ the Division, the FDIC or the FRB 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~~direction (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Winchester Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 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~~ Winchester Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~Wolf & Company, ~~LLP~~P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~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)~~ SEC and the PCAOB and stating in effect that in its opinion the financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of ~~December 31, 2014,~~ June 30, ~~2014~~ 2024 and ~~June 30~~2023, ~~2013~~ and ~~the six months ended December 31, 2014 and~~ for each of the years in the two-year period ended June 30, ~~2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors or Trustees, as applicable, of each of the Winchester Parties 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) the audited consolidated financial statements and any unaudited interim consolidated financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest consolidated financial ~~information~~ statements 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 consolidated long-term or short-term debt or non-performing assets of the ~~Mid-Tier Holding Company~~Bank; (C) except as set forth in said letter, ~~other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases~~ there was any decrease in the total assets, total investment securities, total loans, the allowance for ~~loan~~ credit losses, total ~~deposits~~ deposits, or total ~~equity~~ surplus of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest consolidated balance sheet included in the Prospectus; or (D) there was any decrease in total interest and dividend income, net interest income, net interest income after provision for credit losses, other income or net income or increase in interest expense, operating expense or the provision for credit losses of the Bank, in each case for the period commencing immediately after the period covered by the latest consolidated balance sheet and net income (loss) statement included in the Prospectus to and ended on 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,~~ this Agreement as compared ~~with~~ to the corresponding period in the preceding ~~fiscal~~ year~~, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shtha

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,~~ 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 OCC, the Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the OCC and the Federal ~~Reserve Board not later than 5:30 p.m. on the date of this Agreement~~Reserve, ~~or with the Agent’s consent at a later time and date; and~~ respectively 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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~contribution, 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~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Silver, ~~special counsel for the Primary Parties, which shall also state that~~ ▇▇▇▇▇▇▇▇~~▇▇ ▇▇▇▇~~, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~LLP, 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 opinion~~The letter, dated as of the Closing ~~Date and addressed to the Agent and for its benefit~~Date, of Silver, ▇▇▇▇▇▇▇▇~~▇▇ ▇▇▇▇~~, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ~~special~~ in form and substance satisfactory to the Agent and counsel for the Agent, ~~in form and substance as reasonably acceptable~~ to the ~~Agent.~~effect as set forth in the last paragraph of Exhibit A. (ed) ~~A blue sky memorandum~~ Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP ~~relating~~ dated the date hereof and addressed to the ~~Offering~~Agent, ~~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~~ such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP ~~shall state~~ 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 exemptions~~this 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 law~~Closing 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 Counsel~~Mutual 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ Mutual Savings Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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; (vi) no order suspending~~ the ~~Conversion~~Federal Reserve, the ~~Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the OCC or the Federal Reserve ~~Board~~ 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 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 and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ OCC approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Dallas evidencing ~~the good standing of the Bank;~~ Mutual Savings’ membership therein, (v) a certificate from the FDIC evidencing ~~the Bank’s~~ Mutual Savings’ insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ 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 ~~Offering~~ 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 ~~delivery of~~ Agent shall be deemed a representation and warranty by such Mutual Savings Party to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ 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, ~~counsel to~~ the ~~Agent sh~~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~~ 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 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 ~~Conversion~~ MHC Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the ~~Federal Reserve Board~~ OTS and the SEC or any other ~~applicable regulator~~authority government. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC, the MHC Notice and ~~the Conversion Application and the~~ Holding Company Application shall have been approved by the ~~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~~ OTS 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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion~~OTS, the ~~Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; 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 BDO USA~~offer, ~~LLP, 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 BDO USA, LLP 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, ~~comply~~ and 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 time the MHC Notice, 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 ~~SEC~~ MHC Regulations (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the ~~1933 Act; (ii) stating that (A) during~~ appraisal valuation and 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreasesplan, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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 roundingcounsel need express no opinion). (jxii) At the time that the Registration Statement became effective and as of the Closing Date, the ~~Agent shall receive a letter dated the Closing Date~~Registration Statement, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 including the Prospectus ~~was derived~~(as amended or supplemented) (other than the financial statements, ~~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~~ notes to financial statements, financial tables or other financial and ~~accounting matters~~statistical data included therein and the appraisal valuation and the business plan, ~~nothing came~~ as to ~~their attention~~ which ~~caused them~~ counsel need express no opinion), complied as 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. (k) 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 the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies form in all material respects with the ~~applicable~~ requirements of the ~~Conversion Regulations~~1933 Act and the rules and regulations promulgated thereunder. (xiii) To such counsel's Actual Knowledge, ~~and~~ 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) 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 which are required 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 disclosed in the Registration Statement and ~~the~~ Prospectus, other than those disclosed therein. (oxiv) ~~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 Date~~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 ~~the Agent sh~~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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on~~ Board, the ~~date~~ New York Application shall have been approved by the 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, 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 ~~Commission~~Federal Reserve Board, the ~~Federal Reserve Board~~ New York State Department of Financial Services, the 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 benefit~~Date, of ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ , P.C. and/or local counsel acceptable to ~~Section 8(d) of this Agreement~~the Agent, 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 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,~~ The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent,~~ P.C. in form and substance ~~as reasonably acceptable~~ to the ~~Agent. (e) A blue sky memorandum from~~ effect that, during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness, or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement 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 Registration Statement, or Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ Procter LLP, counsel for KBW, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. (4) The letter of ▇▇▇▇▇▇▇ 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 10(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). (5) A Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the Offering, including Agent’s participation therein, 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 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 Counsel~~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 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) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that 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~~results of operation, capital, properties, or business ~~or prospects~~ affairs of the Primary ~~Parties independently~~Parties, ~~or of the Primary Parties~~ considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing ~~Date,~~ Date including the conditions contained in this Section 810; (v) no stop order ~~suspending the effectiveness of the Registration Statement~~ has been ~~initiated~~ issued or, to the ~~knowledge~~ best of ~~the Primary Parties~~their knowledge, ~~threatened~~ is threatened, by the Commission or any ~~state authority~~other governmental body; (vi) no order suspending the Offering, the Exchange, the Conversion, the ~~Offering~~ 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 Federal Reserve ~~Board~~ Board, the Commission, or any other federal or state authority; ~~and~~ (vii) to the ~~knowledge~~ best of ~~the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve Board ~~or any other applicable regulator~~ 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 Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ~~Prospectus~~Prospectus 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 and as of the latest date as of which such~~ condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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~~earnings, 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shcap

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, 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 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 Conversion ~~Regulations (except to~~ Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board 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 ~~Federal Reserve Board or any other applicable regulator~~Agencies. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall ~~have been~~ be approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ Agencies 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇▇~~▇ & ▇▇▇▇▇▇▇~~▇ LLP~~▇▇, special counsel for the ~~Agent~~Company and the Bank, in form and substance ~~as reasonably acceptable~~ to the ~~Agent~~effect that: (i) 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. (eii) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ 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 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; 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. To such counsel's Actual Knowledge, 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. (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 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 OBRE and the FDIC 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 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 satisfaction of the conditions to the Agencies' approval of the Offering, ~~including Agent’s participation therein~~no further approval, ~~shall have been furnished prior to~~ registration, authorization, consent or other order of any federal regulatory agency is required in connection with the ~~mailing~~ execution and delivery of this Agreement, the issuance of the ~~Prospectus~~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 (as to which no opinion need be rendered). To such counsel's Actual Knowledge, the Offering has been consummated in all material respects in accordance with Conversion Regulations and the BHC Act, except that no opinion is rendered with respect to (a) the Conversion Application, the Holding Company ~~with a copy thereof addressed to Agent~~ Application, the Registration Statement or ~~upon~~ Prospectus, which ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state~~ are covered by other clauses of this opinion, (b) the ~~Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration~~ satisfaction of the ~~Shares~~ post-Offering conditions in the Conversion Regulations or in the Agency approvals of the Conversion Application and the Holding Company Application, (c) the securities or "blue sky" laws of various jurisdictions and (d) the rules and regulations of the NASD. (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 OBRE and the FDIC, the Conversion Application, including the 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 ~~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). At the time the Holding Company Application, including the Prospectus contained therein, was approved by the FRB, the Holding Company Application, including the 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). (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, the BHC Act 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 Date~~all 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 respective dates as of which information is given description thereof contained in the Registration ~~Statement~~Statement and Prospectus, and the ~~General Disclosure Package~~ 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, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company 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, ~~no event has occurred that should have been set forth in an amendment or supplement~~ including ordinary routine litigation incidental to the ~~Prospectus that has not been so set forth~~Company's or the Bank's business, ~~including specifically~~are, ~~but without limitation, any material adverse change~~ considered in the ~~condition~~aggregate, ~~financial~~ not material. (xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or ~~otherwise,~~ other instruments required to be described or referred to in the ~~earnings~~Conversion Application, ~~capital~~the Holding Company Application, ~~properties~~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, ~~business~~ the Holding Company Application, the Registration Statement or ~~prospects~~ 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 ~~Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business~~ Plan and ~~the conditions set forth in this Section 8 have been satisfied; (iii) the representations~~ applicable Illinois 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; (iv) the Primary Parties have complied~~ federal law. The Plan complies in all material respects with all ~~material agreements~~ applicable Illinois and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ federal laws, rules, regulations, decisions and orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v)~~ 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~~ OBRE, the Commission, the FDIC, or any state ~~authority; (vi) no order suspending the Conversion,~~ authority to suspend the 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~~ instituted or, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, threatened by the ~~Federal Reserve Board~~ OBRE, the Commission, the FDIC, or any ~~other federal or~~ state ~~authority;~~ authority and ~~(vii) to the knowledge of the Primary Parties,~~ no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ Agencies, 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~~Plan, the ~~General Disclosure Package and Prospectus, any material loss~~ Conversion 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 Offering 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 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 Agent~~any 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 Parties considered as one enterprise~~Company and the Bank on a consolidated basis; to such counsel's Actual Knowledge, ~~from~~ the execution and as delivery of this Agreement, the occurrence of the ~~latest date 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 ~~Prospectus~~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 ~~transactions referred to or contemplated therein; (ii) none~~ the establishment of the ~~Primary Parties shall have received~~ liquidation account); 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 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 ~~any Governmental Entity any direction (oral~~ the OBRE, FRB or ~~written)~~ the FDIC to make any material change in the method of conducting ~~their business with which it~~ its respective business. (xxi) The information in the Prospectus under the captions "Summary - The Stock Offering," "Summary - Terms of the 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 Allied First Bank" and "Description of Capital Stock of Allied First Bancorp, Inc.," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has ~~not complied~~ been reviewed by such counsel and is correct in all material ~~respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none~~ respects. The discussion of ~~the Primary Parties shall have been in default (nor shall an event have occurred which, with notice~~ statutes or ~~lapse of time~~ regulations described or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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~~ accurate summaries and fairly present the ~~1933 Act, applicable accounting requirements of~~ information required to be shown. The information under the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus. (k) 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 caption "Allied First Bank's Conversion - Effects of the Conversion ~~Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements~~ - Tax Effects 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shConversio

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~~ 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application, Holding Company Application and the ~~Holding Company~~ Merger Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement~~OTS, ~~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, 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 benefit~~Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~LLP~~LLP and/or local counsel acceptable to the Agent, ~~special~~ 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 described in the Prospectus and is duly qualified to transact business and is in good standing in Montana 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 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 described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The 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. 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 Seattle. 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 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. (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 Members in the manner required by the Conversion Regulations and the certificate 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 or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xi) The Conversion Application, the Holding Company Application and the Merger Application have been approved by the OTS and the Prospectus, the Voting Members’ 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 be required under the state securities or “blue sky” laws of various jurisdictions as to which ~~shall also state~~ no opinion need be rendered. (xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, 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 opinions rendered by such counsel and Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 PLLP to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable~~ Primary Parties with respect to ~~the Agent~~such matters. (exv) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ The terms and provisions of the shares of Common Stock conform to the ~~Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy~~ description thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 respective dates as of which information is given contained in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the ~~conditions set forth~~ form of certificate to be used to evidence the shares of Common Stock is in ~~this Section 8 have been satisfied;~~ due and proper form. (~~iii~~xvi) At the ~~representations and warranties in Section 4 are true and correct with~~ time the ~~same force and effect as though expressly made at~~ Applications were approved and as of the Closing Date; , the Applications (ivas amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the ~~Primary Parties have~~ Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with ~~all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to~~ the ~~Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness~~ requirements of the ~~Registration Statement has been initiated or~~Conversion Regulations and all applicable laws, ~~to the knowledge~~ rules and regulations and decisions and orders of the ~~Primary Parties~~OTS, ~~threatened by~~ except as modified or waived in writing (other than the ~~Commission or any state authority; (vi)~~ 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 order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiesopinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS in approving the ~~Conversion~~Applications. (gxvii) ~~None~~ At the time that the Registration Statement became effective and as of the ~~Primary Parties shall have sustained~~Closing Date, ~~since the date of the latest financial statements included in~~ the Registration Statement, including the ~~General Disclosure Package and Prospectus~~Prospectus (as amended or supplemented) (other than the financial statements, ~~any material loss or interference with its business from fire~~notes to financial statements, ~~explosion, flood~~ financial tables 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~~ financial and statistical data included therein and the ~~Prospectus, and since the respective dates as of which information is given in the Registration Statement~~ appraisal valuation and the ~~Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse~~ business plan as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the ~~applicable accounting~~ requirements ~~and related published rules and regulations~~ of the ~~SEC~~ 1933 Act and the 1933 ~~Act;~~ 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) ~~stating~~ 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 Eagle Bancorp” “Restrictions on Acquisition of Eagle Bancorp Montana, Inc.,” “Description of Capital Stock of Eagle Bancorp Montana, Inc. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxi) None of the Primary Parties is in violation of its 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 Delaware and Montana. In rendering such opinion, such counsel may rely (A) ~~during~~ as to matters involving the ~~period from~~ application of laws of any jurisdiction other than 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~~ United States, to the ~~date~~ extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the ~~Prospectus~~Agent, ~~except~~ as ~~has been described in~~ long as such other opinion indicates that the ~~Prospectus~~Agent may rely on the opinion, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) ~~during the period from the date~~ as to matters of 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 the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting recordsfact, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect thatcounsel deems proper, on ~~the basis~~ certificates 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 responsible officers of the Primary Parties and ~~consultations~~ public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with ~~officers~~ the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the ~~Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them~~ Primary Parties shall state that it has no reason to believe ~~that: (A~~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 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 Prospectusreliance. (k2) At The letter of ▇▇▇▇▇ Peabody LLP in form and substance to 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 the Conversion Regulations, (ii) stating in effect that during the ~~Appraisal prepared by such firm complies in all material respects with the applicable requirements~~ preparation 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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~~ , ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the ~~Closing Date~~Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent shat 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 ▇▇▇▇▇ Peabody 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 Pack

Appears in 2 contracts

Sources: Agency Agreement (Eagle Bancorp Montana, Inc.), Agency Agreement (Eagle Bancorp Montana, 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 and other statements of the ~~Primary Parties~~ Holding Company and the Bank herein ~~are,~~ contained are at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application shall have been~~ Applications approved by the ~~Federal Reserve Board~~ 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 ~~knowledge of~~ Holding Company's or the ~~Primary Parties~~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 Federal Reserve Board~~ or any other ~~federal or state authority~~governmental 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 benefit~~Date, of ~~▇▇▇▇~~Krei▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇~~▇▇▇▇▇▇▇ ▇▇▇x▇▇▇▇▇ & ▇~~▇▇▇~~ape▇▇▇▇ ~~LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~▇▇▇, counsel for the Holding Company and the Bank, 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 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 ~~Closing Date~~time the Applications, including the Prospectus contained therein, were approved, the ~~Agent shall have received~~ Applications (as amended or supplemented) complied as to form in all material respects with the ~~favorable opinion, dated as~~ requirements of the ~~Closing Date~~ Regulatory Agencies and ~~addressed~~ 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 ~~Agent~~ 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 ~~benefit~~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, special counsel for the Holding Company and the Bank, in form and substance to the effect that: In addition, during the preparation of the Registration Statement and the Prospectus, Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ ~~LLP~~& ▇ape▇▇▇▇, ~~special~~ ▇▇P, participated in conferences with certain officers of and other representatives of the Bank and the Holding Company, counsel ~~for~~ to the Agent, ~~in form~~ representatives of the independent public accountants for the Bank and ~~substance as reasonably acceptable to~~ the ~~Agent. (e) A blue sky memorandum from~~ Holding Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ ~~LLP relating~~ & ▇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 ~~Offering, including Agent’s participation therein, shall have been furnished prior to the mailing~~ attention of ~~the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which~~ Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ ~~LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions~~& ▇ape▇▇▇▇, ~~qualifications or the registration of the Shares under applicable state securities law. (f) At the Closing Date~~▇▇P, 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 Counselthat caused Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, ~~dated as of such Closing Date~~▇▇P, to believe that 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 SEC or the Prospectus ~~became authorized for final use~~or 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~~ it being understood that counsel need express no comment or opinion with respect to the ~~respective dates as of which information is given~~ financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration ~~Statement~~Statement 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 ~~Prospectus~~Agent's counsel, ~~no event has occurred~~ as long as such other opinion indicates that ~~should have been set forth in an amendment or supplement~~ the Agent may rely on the opinion, and (B) as to matters of fact, to the ~~Prospectus that has not been so set forth~~extent such counsel deems proper, ~~including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects~~ on certificates of responsible officers of the ~~Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business~~ Holding Company and the ~~conditions set forth in this Section 8 have been satisfied~~Bank and public officials; ~~(iii~~provided copies of any such opinion(s) ~~the representations and warranties in Section 4~~ or certificates of 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~~; (iv)~~ , of counsel for the ~~Primary Parties have complied in all material respects~~ Agent, with ~~all material 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 satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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. (ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA, LLP,~~ Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated ~~as of~~ the date hereof and addressed to the Agent: , (i) such letter confirming that ~~BDO USA,~~ 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 financial statements ~~and related notes~~ of the ~~Mid-Tier~~ Holding Company ~~as of December 31, 2014, June 30, 2014 and June 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,~~ 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 ~~SEC~~ Commission thereunder and ~~the 1933 Act~~generally accepted accounting principles; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (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 ~~review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information)~~ reading of the latest available unaudited interim financial statements of the ~~Mid-Tier~~ Holding Company and the Bank prepared by the ~~Mid-Tier~~ Holding Company and ~~from which~~ the ~~“Recent Developments” information included in the Prospectus was derived~~Bank, a reading of the minutes of the meetings of the ~~Boards~~ Board 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 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,~~ Agents hereunder are subject, to the extent not waived in writing by the ~~Agent~~Agents, 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board~~ Commissioner and the FDIC, the SEC or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ Commissioner and not ~~later than 5:30 p.m. on~~ objected to by 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 ~~knowledge of~~ Company’s, the ~~Primary Parties~~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 ~~Commission~~Commissioner, the ~~Federal Reserve Board~~ FDIC, the 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the ~~Primary Parties~~Company, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementthe 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 misleading~~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) ~~since~~ 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 ~~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, ~~no event has occurred that should have been set forth in an amendment or supplement~~ 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 ~~Prospectus that~~ extent payment therefor in cash has not been ~~so set forth~~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 respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Shares complies in all material respects with the requirements of Connecticut 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, 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 ~~specifically, but without limitation, any material adverse change in~~ the ~~condition, financial or otherwise, or in~~ contribution to the ~~earnings, capital, properties, business or prospects~~ Foundation. The execution and delivery of this Agreement and the consummation of the ~~Primary Parties independently, or~~ transactions contemplated hereby have been duly authorized by all necessary action on the part of the ~~Primary Parties considered as one enterprise~~Company, ~~whether or not arising in~~ the ~~ordinary course of business~~ MHC, the Mid-Tier Holding Company and the ~~conditions set forth~~ 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 ~~this Section 8 have been satisfied;~~ 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 ~~representations~~ safety and ~~warranties in Section 4 are true~~ soundness of insured depository institutions, and ~~correct with the same force and effect as though expressly made at and as of the Closing Date;~~ (iv) applicable law or public policy with respect to the ~~Primary Parties~~ 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 proceedings with respect thereto have been instituted or, to the knowledge of such counsel, are pending or threatened under the 19▇▇ ▇▇▇. (xi) At the time the Conversion Application, including the Prospectus and Corporator’s Informational Material and Shareholders’ Proxy Statement contained therein, was approved by the Commissioner, the FDIC and the FRB, the Conversion Application, including the Prospectus and Corporator’s Informational Material and Shareholders’ Proxy Statement 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 ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v) no stop order suspending the effectiveness of the Registration Statement has been initiated or~~and, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the 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 StatementCommissioner, 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 Offering FDIC or the ~~delivery of the Shares~~ FRB on the ~~terms and in~~ Plan, the ~~manner contemplated in~~ Conversion Application, the Holding Company Application or the Prospectus. (hxvi) ~~Prior to~~ The execution 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, dated as~~ incurrence of the ~~date hereof~~ obligations herein set forth and ~~addressed to~~ the ~~Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules~~ consummation of the ~~Public Company Accounting Oversight Board~~ transactions contemplated herein do not (~~United States~~a) ~~and stating~~ conflict with or constitute a breach of, or default under, or result in ~~effect that in its opinion~~ the ~~financial statements and related notes~~ creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company ~~as of December 31~~or the Bank pursuant to any material contract, ~~2014~~indenture, ~~June 30~~mortgage, ~~2014 and June 30~~loan agreement, ~~2013 and~~ note, lease or other instrument to which 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, ~~other than normal deposit fluctuations for~~ the ~~Mid-Tier Holding Company~~MHC, ~~or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of~~ the Mid-Tier Holding Company ~~and~~ or the Bank is a party that is filed as an exhibit to the Registration Statement (~~B) during~~ other than the ~~period from the date~~ establishment of the ~~recent developments financial information included~~ liquidation accounts), (b) result in ~~the Prospectus to a specified date not more than three business days prior to the date~~ any violation of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income provisions of the ~~Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance~~ Certificate of Incorporation or Bylaws of the ~~procedures referred to in clause (ii)~~ Company or the Certificate of ~~this subsection (i), they have compared with~~ Incorporation or the ~~general accounting records~~ Bylaws of the ~~Mid-Tier Holding Company~~MHC, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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~~ or the ~~Mid-Tier Holding Company~~ Bank or, (c) result in any violation of any applicable federal or Connecticut law, act, regulation (except that no opinion with respect to the securities and ~~from which~~ blue sky laws of various jurisdictions or the ~~“Recent Developments” information included~~ rules or regulations of FINRA and/or Nasdaq Global Select Market need be rendered) or order or court order, writ, injunction or decree. (xvii) 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 was derived~~Prospectus; the activities of SBR Mortgage Company, ~~a reading of the minutes of the meetings of the Boards of Directors~~ SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and ~~committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters~~Rockville Bank Mortgage, ~~nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included~~ Inc. as described in the Prospectus are ~~not in conformity with~~ permitted to subsidiaries of a Connecticut chartered savings bank under the ~~1933 Act, applicable accounting requirements~~ laws of the ~~Commission, and GAAP applied on a basis substantially consistent with that~~ State of Connecticut; all of the audited financial statements included in the Prospectus. (k) 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 issued 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 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 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 Dateencumbrance. (mxviii) ~~At or prior to~~ The Foundation has been duly incorporated and is validly existing as a non-stock corporation under the ~~Closing Date, the Agent shall receive: (i) a copy~~ laws of the ~~letters from the Federal Reserve Board~~ State of Connecticut with corporate power and ~~any other applicable regulator approving the Conversion Application~~ authority to own, lease and ~~the Holding Company Application~~ operate its properties and ~~authorizing the use of~~ to conduct its business as described in the Prospectus; ~~(ii) a copy~~ no approvals are required for the contribution to the Foundation as described in the Prospectus other than those set forth in the approval order of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably requestCommissioner dated December 30, 2010. (nxix) ~~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~~ The information in the ~~over-the-counter market, or quotations halted generally on~~ Prospectus under 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 captions “Our Dividend Policy” “Supervision 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 shRegulation,” “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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ OTS, the ~~date~~ Charter Applications have been approved by the FDIC and New Jersey Department of ~~this Agreement~~Banking and Insurance, ~~or with the Agent’s consent at a later time~~ as applicable, 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, 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ FDIC, the New Jersey Department of Banking and Insurance, the 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 benefit~~Date, of ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ , P.C. and/or local counsel acceptable to ~~Section 8(d) of this Agreement~~the Agent, in form and substance ~~as attached hereto as Exhibit C.~~satisfactory to the Agent and counsel for the Agent to the effect that: (di) At 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 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 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 ~~Agent shall~~ 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 ~~received~~ a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the ~~favorable opinion~~laws of the United States, ~~dated~~ 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 be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, 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~~ Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) and ~~addressed~~ 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 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 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 ~~benefit~~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~~, ~~special counsel for the Agent,~~ P.C. in form and substance ~~as reasonably acceptable~~ to the effect 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 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 (~~e) A blue sky memorandum from~~ without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 shall state~~ ▇, P.C. 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 respective dates as of which information is given~~ contained in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shState

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,~~ 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 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 ~~Conversion~~ MHC Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ MHC Notice and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on the date of this Agreement~~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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 opinion~~receive a letter from BKD, LLP dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~CF 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ CF Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board or any other applicable regulator~~ in approving the ~~Conversion~~Plan 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 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~~ CF Parties ~~considered~~ independently, or the CF Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the MHC Notice and a copy of the letters from the Federal Reserve ~~Board and any other applicable regulator~~ approving the ~~Conversion Application and the Holding Company Application and authorizing the use of the Prospectus;~~ MHC Notice, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Cincinnati evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering or the delivery~~ sale of the ~~Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Shares. (om) At Prior to and at the Closing date, none of the CF Parties will have received from the Federal Reserve, the OCC or ~~prior~~ 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 ~~Closing Date~~Agent). (n) All such opinions, ~~counsel~~ 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 shand 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.

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 representations and warranties of the ~~Primary~~ Sunshine Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ OCC or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ OCC and the 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, to the knowledge of the ~~Primary~~ Sunshine 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~~ Sunshine Parties’ knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ OCC, the FRB or any other federal or state authority. (c1) 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 ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.B. (d2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Sunshine Parties, counsel to the Agent, representatives of the independent public accountants for the Sunshine 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(c)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package). (1) 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 Agent, in form and substance as ~~reasonably acceptable~~ attached hereto as Exhibit C. (2) The letter of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance to the ~~Agent~~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 Sunshine Parties, counsel to the Sunshine Parties, representatives of the independent public accountants for the Sunshine 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(d)(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, the Prospectus or the General Disclosure Package). (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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~~ 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects 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 and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the ~~Primary~~ Sunshine Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the ~~Primary~~ Sunshine Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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~~ Sunshine Parties, threatened by the ~~Federal Reserve Board~~ OCC or any ~~other federal or~~ state authority; and (vii) to the knowledge of the ~~Primary~~ Sunshine Parties, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board~~ OCC or any other applicable regulator 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 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~~ Sunshine Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Sunshine Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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 material outstanding indebtedness; (iv) 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 any of the ~~Primary~~ Sunshine Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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~~ Sunshine Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~Hacker, ~~LLP~~▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~Hacker, ~~LLP~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014, June 30, 2014 and June 30,~~ 2013 and ~~the six months ended~~ December 31, ~~2014~~ 2012 and the fiscal years ~~ended June 30, 2014 and 2013~~then ended, and covered by their opinion 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 SEC and the 1933 Act; (ii) stating ~~that~~ 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 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 Boards of Directors and committees of each of the Sunshine Parties and consultations with officers of the Sunshine Parties 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; or (B) 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 long-term debt of the ~~Mid-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company~~Bank, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company~~ Bank and (BC) during the period from the date of 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 the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the ~~Mid-Tier Holding Company~~Bank; 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Sunshine Parties, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Sunshine Parties, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Sunshine 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~Hacker, ~~LLP~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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~~ Sunshine 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shex

Appears in 1 contract

Sources: Agency Agreement (Sunshine 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~~ Madison Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the ~~Primary~~ Madison 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~~ Madison Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~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 ~~Federal Reserve Board or any other applicable regulator~~FRB to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ SEC, the Conversion Application shall have been approved by the FRB, and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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~~ Madison Parties’ knowledge, threatened by the ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Madison Parties, in form and substance satisfactory to the Agent and its counsel, 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, L.L.P., special counsel for the Agent, in form and substance satisfactory to the Agent, as attached hereto as Exhibit D. (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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~~ Madison 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Madison 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 Madison Parties independently, or of the ~~Primary~~ Madison Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Madison Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the ~~Primary~~ Madison Parties, threatened by the ~~Commission~~ SEC or any state authority; (vivii) no order suspending the Conversion, the 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~~ Madison Parties, threatened by the ~~Federal Reserve Board~~ SEC, the FRB or any ~~other federal or~~ state authority; and (~~vii~~viii) to the knowledge of the ~~Primary~~ Madison Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ FRB approving the ~~Conversion~~Plan or the FRB approving the Holding Company Application. (g) None of the ~~Primary~~ Madison 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 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 or business of the ~~Primary~~ Madison Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Madison Parties shall have received from ~~any Governmental Entity~~ the FRB, 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) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Madison Parties taken as a ~~Material Adverse Effect~~whole; (iii) none of the ~~Primary~~ Madison 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; (iv) 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~~ Madison Parties, threatened against the any of the ~~Primary~~ Madison Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingMadison 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~~ Madison Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~BKD, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~BKD, 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~~ MHC as of December 31, ~~2014~~2011 and 2010, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the three-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~2011, 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, the 1934 Act, and related published rules and regulations of the SEC and the ~~1933 Act~~FRB; (ii) stating ~~that~~ 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 MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Madison Parties and consultations with officers of the 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 applicable accounting requirements of the 1933 Act, the 1934 Act related published rules and regulations of the SEC, 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-Tier Holding Company~~total borrowings, other than normal deposit fluctuations for the ~~Mid~~MHC, non-~~Tier Holding Company~~performing assets, or ~~decreases~~ classified loans of the MHC; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total ~~deposits~~ deposits, loans receivable (net), or total equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ MHC at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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~~ ; or (D) there was any decrease in ~~the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in~~ net income or total interest ~~income,~~ income or net interest ~~income,~~ income or net interest income after provision for loan losses, non-interest income ~~before income tax~~ or increase in provision for loan losses or non-interest expense ~~or net income~~ of the ~~Mid-Tier Holding Company~~MHC, on a consolidated basis, 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~MHC, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~MHC, the accounting system and other data prepared by the ~~Mid-Tier Holding Company,~~ MHC 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~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 (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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~~ Madison 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 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 ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ FRB approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus~~Application; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iii) a copy of the order from the ~~Commission that declared~~ SEC declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv) a certificate of good standing from the ~~New Jersey Banking Department~~ State of Maryland evidencing the good standing of the Holding Company; (v) a certificate of good standing from the OCC evidencing the good standing of the Bank; (vvi) a certificate from the FRB evidencing the good standing of the MHC and the Mid-Tier; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-~~New York~~ Topeka evidencing the Bank’s membership therein; (~~vii~~ix) a certificate of good standing from the ~~Maryland~~ State ~~Department~~ of ~~Assessments and Taxation~~ Nebraska evidencing the good standing of the ~~Holding Company~~Subsidiary; and (~~viii~~x) ~~such other documents~~ a certified copy of each of the Holding Company’s, the MHC’s, the Mid-Tier’s, the Bank’s and ~~certificates as~~ the ~~Agent may reasonably request~~Subsidiary’s Articles of Incorporation and Bylaws. (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~~ SEC or any other governmental ~~authority other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, the Agent and counsel to the Agent shshall 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 Madison 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 opinions, certificates, letters and do

Appears in 1 contract

Sources: Agency Agreement (Madison County Financial, 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 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇~~ LLP, special counsel for the Agent, in form and substance as ~~reasonably acceptable to the Agent.~~attached hereto as Exhibit D. (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 OBA Parties independently, or of the ~~Primary~~ OBA Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ OBA Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ OTS or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ OBA Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board 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 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~~ OBA Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ OBA Parties shall have received from ~~any Governmental Entity~~ the 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the OBA Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingOBA 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 ~~BDO USA, LLP~~ParenteBeard LLC, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA, LLP~~ ParenteBeard LLC 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~~ MHC as of ~~December 31, 2014,~~ June 30, ~~2014~~ 2009 and ~~June 30~~2008, ~~2013~~ and ~~the six months ended December 31, 2014 and~~ for each of the years in the three-year period ended June 30, ~~2014 and 2013~~2009, 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 ~~SEC~~ OTS and the 1933 Act; (ii) stating ~~that~~ 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 MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the OBA Parties 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) 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 OTS 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~MHC, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~MHC, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~MHC, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA, LLP~~ ParenteBeard LLC in the letter delivered by it pursuant to subsection (ig) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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 ~~Conversion~~ Code of Federal Regulations, Section 563b.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 ~~Conversion~~ 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. (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 letters from the ~~Federal Reserve Board and any other applicable regulator~~ OTS approving the ~~Conversion Application and~~ Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; (iii) certificates from the ~~Federal Reserve Board~~ OTS evidencing the valid existence of the Bank, the MHC and ~~the Mid-Tier Holding Company~~OBA Bancorp; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Atlanta evidencing the Bank’s membership therein; ~~(vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company;~~ and (~~viii~~vi) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, counsel to the Agent shshall 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 1 contract

Sources: 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 Parties~~ Company and the Bank herein are, at and as of the commencement of the 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, 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 contribution to the Foundation, in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator),~~ OTS) 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 ~~Federal Reserve Board~~ OTS, the SEC or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~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~~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 ~~knowledge of~~ Company’s or the ~~Primary Parties~~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 or the Bank’s knowledge, threatened by the ~~Commission~~OTS, the ~~Federal Reserve Board~~ SEC or any other ~~federal or state~~ governmental 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 ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Company and the Bank, in form and substance as ~~attached hereto as~~ set forth in Exhibit C.D hereto. (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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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~~ Company and the Bank in form and substance reasonably satisfactory to the Agent’s ~~Counsel~~counsel, dated as of such Closing Date, to the effect that: (iA) they have carefully ~~examined~~ reviewed the Prospectus and the Proxy Statement and, in their opinion, at the time the Prospectus ~~became authorized for final use~~and the Proxy Statement were declared effective and cleared, respectively, the Prospectus and the Proxy Statement 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; (iiB) since the ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus was declared effective, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary Parties independently~~Company or the Bank considered as one enterprise; (C) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital or properties of the ~~Primary Parties~~ Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~D) 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; (ivE) the ~~Primary Parties~~ Company and the Bank have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing ~~Date, including~~ Date and will comply in all material respects with all obligations to be satisfied by them after the ~~conditions contained in this Section 8~~Conversion; (vF) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the ~~Primary Parties~~Company or the Bank, threatened by the ~~Commission or any state authority~~SEC; (viG) no order suspending the Offering, the Conversion, the ~~Offering~~ acquisition of all of the outstanding capital stock of the Bank by the Company or the ~~use~~ effectiveness of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the ~~Primary Parties~~Company or the Bank, threatened by the ~~Federal Reserve Board~~ OTS or any other ~~federal or state~~ governmental authority; and (~~vii~~H) to the knowledge of the ~~Primary Parties~~Company and the Bank, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan. (e) Prior to and at the Closing Date: (A) in the reasonable opinion of the Agent, there shall have been no material adverse change in the condition, financial or otherwise, or in the earnings or business of the 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; (B) neither the Company nor the Bank have received from the OTS 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 business, operations or financial condition or income of the Company and the Bank taken as a whole; (C) neither of 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 outstanding indebtedness; (D) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the business, operations, financial condition or income of the Company and the Bank taken as a whole; and (E) 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 Company and the Bank. (f) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP, dated as of the date of the Prospectus and addressed to the Agent: (A) confirming that BKD, LLP is a firm of independent registered public accountants within the meaning of Rule 101 of the Code of Professional Ethics of the American Institute of Certified Public Accountants and applicable regulations of the SEC and stating in effect that in their opinion the consolidated financial statements, schedules and related notes of the Bank included in the Prospectus and/or covered by their opinion included therein, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the 1933 Act; (B) 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 financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors 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: (i) the unaudited financial statements included in the Prospectus are not in conformity with the 1933 Act, and generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (ii) 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, except as has been described in the Prospectus, there was any increase in liabilities, other than normal deposit fluctuations or non-accrual loans, of the Bank, on a consolidated basis; or (iii) there was any decrease in the net assets, shareholders’ equity or allowance for loan losses of the Bank as compared with amounts shown in the latest unaudited balance sheets included in the Prospectus or there was any decrease in net income or net interest income or increase in non-interest expense of the Bank 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 (C) 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 (B) of this subsection (f), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system and other data prepared by the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith. In addition, with regard to any Issuer Represented General Free Writing Prospectus, BKD, LLP shall provide a letter stating that they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system 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 Issuer Represented General Free Writing Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith. (g) ~~None~~ To the extent a sale or other disposition or transfer of shares of common stock or other securities of the ~~Primary Parties~~ 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 C hereto shall deliver a “lock-up” agreement, each substantially in the form of Exhibit B hereto, between KBW and such persons, relating to such sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Company, on or before the date hereof and shall be in full force and effect at the Closing Time. (h) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by BKD, LLP in the letter delivered by it pursuant to subsection (f) of this Section 7, the “specified date” referred to in clause (B) of subsection (f) 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. (i) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated the Closing Date and addressed to the Agent (A) confirming that said firm is independent of the Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (B) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (C) further stating that its opinion of the aggregate pro forma market value of the Company expressed in its Appraisal, as most recently updated, remains in effect. (j) The Company and the Bank shall not have ~~sustained,~~ sustained since the date of the latest financial statements included in the ~~Registration Statement, the General Disclosure Package and Prospectus,~~ 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 or contemplated in the Registration Statement and ~~the Prospectus,~~ 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~~ change in the long-term debt of the Company or the Bank other than debt incurred in relation to the purchase of Shares by the Bank’s eligible plans, 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 or the Bank, otherwise than as set forth or contemplated in the Registration Statement and Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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: (iA) a copy of the letters from the ~~Federal Reserve Board and any other applicable regulator~~ OTS approving the Conversion Application and ~~the Holding Company Application and authorizing the use of~~ declaring effective the Prospectus; (iiB) a copy of the order from the ~~Commission that declared~~ SEC declaring the Registration Statement effective, if available; (~~iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv~~C) a certificate of legal existence from the ~~New Jersey Banking Department~~ State of Maryland evidencing the good standing of the Company; (D) a certificate of existence from the OTS evidencing the existence of the Bank; (vE) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viF) a certificate from the FHLB-~~New York~~ Chicago evidencing the Bank’s membership therein; (~~vii~~G) a ~~certificate from the Maryland State Department~~ certified copy of ~~Assessments and Taxation evidencing the good standing~~ each of the ~~Holding~~ Company; ’s and the Bank’s Articles of Incorporation, Charter and Bylaws, as applicable and (~~viii~~H) ~~such~~ any other documents ~~and certificates as~~ that the Agent ~~may~~ shall reasonably request. (nl) Subsequent to the date hereof, there shall not have occurred any of the following; : (iA) a suspension or limitation (other than a temporary suspension or limitation lasting for less than a single trading day) in trading in securities generally on the New York Stock Exchange, American 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~~ any of such exchanges or FINRA or by order of the ~~Commission~~ SEC or any other governmental ~~authority other than temporary trading halts~~authority; (iiB) a general moratorium on the operations of commercial banks, or federal savings institutions or a general moratorium on the withdrawal of deposits from commercial banks or federal savings institutions declared by federal or state authorities; (~~iii~~C) the engagement by the United States in hostilities ~~that~~ which have resulted in the ~~declaration~~declaration by the U.S. Congress, on or after the date hereof, of a national emergency or ~~war~~ war; or (D) a material decline in the price of equity or debt ~~securities,~~ securities if the effect of such a declaration or ~~decline is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (om) At or prior to the Closing Date, counsel to the Agent shshall 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 or the Bank in connection with the Conversion and the sale of the Shares as herein contemplated shall be satisfactory in form and substance in the reasonable judgment of the Agent and its counsel.

Appears in 1 contract

Sources: Agency Agreement (If 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~~ Heritage Parties herein contained are, at and as of the commencement of the 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~~ Heritage 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~~ Heritage Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 OCC, the Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the OCC and Federal ~~Reserve Board not later than 5:30 p.m. on the date of this Agreement~~Reserve, ~~or with the Agent’s consent at a later time and date; and~~ respectively, 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, to the knowledge of the ~~Primary~~ Heritage 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 Heritage Parties~~’ knowledge~~, threatened by the ~~Commission~~OCC, the Federal ~~Reserve Board~~ Reserve, the Commission, or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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: (1) The opinion, dated as of the Closing Date, addressed to the Agent and for its benefit, of L▇▇▇ ▇▇▇▇▇▇, PC, special counsel for the Heritage Parties, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit B; (2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the General Disclosure Package, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statement, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Heritage Parties, at which conferences the contents of the Registration Statement, the General Disclosure Package, 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 General Disclosure Package, 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 Heritage Parties), nothing has come to their attention that would lead them to believe (i) that the Registration Statement (except for the financial statements and schedules, notes to financial statements, stock valuation information or other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) that the Prospectus (except for the financial statements and schedules, notes to financial statements, stock valuation information or other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), when it was filed with the Commission or at the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits 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, or (iii) that the General Disclosure Package, as of each Applicable Time and at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits 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. (d) Prior to the mailing of the Prospectus, a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇, PC relating to the Offering, including Agent’s participation therein, shall have been furnished to the Company with a copy thereof addressed to Agent or upon which L▇▇▇ ▇▇▇▇▇▇, PC permits the Agent 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 or blue sky laws. (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 V▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPPrice P.C., special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (ef) ~~A blue sky memorandum~~ Concurrently with the execution of this Agreement, the Agent shall receive a letter from H▇▇▇▇▇ ▇. ▇▇▇▇~~▇ LLP relating~~ ▇▇▇▇▇, LLP, dated the date hereof and addressed to the ~~Offering, including Agent’s participation therein, shall have been furnished prior~~ Agent in form and substance satisfactory to the ~~mailing~~ Agent, containing statements and information of the ~~Prospectus,~~ type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the ~~Holding Company with~~ financial statements and financial information contained in the Registration Statement and the Prospectus. (g) At the Closing Date, the Agent shall receive a ~~copy thereof addressed to Agent or upon which~~ letter from H▇▇▇▇▇ ▇. ▇▇▇▇~~▇ LLP~~ ▇▇▇▇▇, LLP, dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (f) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall ~~state~~ be a date not be more than three business days prior to the Closing Date. (h) At the 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 law~~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. (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 Counsel~~Heritage Parties, dated ~~as of such~~ the Closing Date, to the effect that: : (i) they have ~~carefully~~ examined the Registration Statement and at the time the Registration Statement became effective, the Registration Statement did 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; (ii) they have examined the Prospectus ~~and, in their opinion,~~ and at the time the Prospectus ~~became authorized for final use~~was mailed, at each Applicable Time, at the ~~Prospectus~~ Closing Date, and at the time it was filed with the Commission, 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; ; (iiiii) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; Material Adverse Effect; (~~iii~~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 Date; ; (ivv) the ~~Primary~~ Heritage Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (vvi) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vii) 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 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; (vi) no order suspending the Conversion~~OCC, the ~~Offering or~~ Federal Reserve, the ~~use of the Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ and (~~vii~~viii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the ~~Federal Reserve Board~~ OCC in approving the Plan or ~~any other applicable regulator approving~~ to enjoin the Conversion. (gj) 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 Heritage 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 Heritage Parties expressed in the Appraisal as most recently updated, remains in effect. (k) None of the ~~Primary~~ Heritage 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~~ 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 that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (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~~ Heritage Parties ~~considered~~ independently, or the Heritage Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the Conversion Application and a copy of the letters from the ~~Federal Reserve Board and any other applicable regulator~~ OCC approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Dallas evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents ~~and certificates as~~ that the Agent ~~may~~ or its counsel shall 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~~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 ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering or the delivery~~ sale of the ~~Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Shares. (o) At Prior to and at the Closing date, none of the Heritage Parties will have received from the Federal Reserve, the OCC or ~~prior~~ 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 ~~Closing Date~~Agent). (p) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares. (q) All such opinions, ~~counsel~~ 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 shand 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.

Appears in 1 contract

Sources: Agency Agreement (Heritage NOLA 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 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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,~~ or to the knowledge of the ~~Primary Parties~~Company or the Bank, 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 and the Bank’s knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ OTS, 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.D. (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~~ A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 and the 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 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary Parties independently, or of~~ Company and the ~~Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business~~ Bank 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 Company and the Bank independently, or of the 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; (ivv) the ~~Primary Parties have~~ Company and the Bank complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the ~~Primary Parties~~Company and the Bank, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the 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~~Company and the Bank, threatened by the ~~Federal Reserve Board~~ OTS or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary Parties~~Company and the Bank, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS 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 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 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 ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) ~~none of~~ neither the ~~Primary Parties~~ Company nor the Bank shall have received from ~~any Governmental Entity~~ the 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Company and the Bank taken as a ~~Material Adverse Effect~~whole; (iii) ~~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 ~~material~~ outstanding indebtedness; (iv) 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~~Company and the Bank, threatened against any of the ~~Primary Parties~~ Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the ~~Conversion or Offering~~ Company and ~~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 Offering~~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 laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the ~~Primary Parties~~Company and the Bank. (ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~McGladrey & ▇▇▇▇▇▇, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~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 Holding Company~~ Bank as of December 31, ~~2014~~2008 and 2007, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the three-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~2008, 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 ~~SEC~~ OTS and the 1933 Act; (ii) stating ~~that~~ 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 Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Company and 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) 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 OTS 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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~~ borrowings of the ~~Mid-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the ~~total assets, total loans, the allowance for loan losses, total deposits or total equity~~ net assets of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~McGladrey & ▇▇▇▇▇▇, LLP in the letter delivered by it pursuant to subsection (ih) of this Section 8, the “specified date” referred to in clause (iii) of subsection (ih) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (kj) 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~~ Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the ~~Conversion~~ Code of Federal Regulations, Section 563b.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 ~~Conversion~~ 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. (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. (mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the ~~Federal Reserve Board and any other applicable regulator~~ OTS approving the ~~Conversion Application and~~ Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; (iii) ~~certificates~~ a certificate from the ~~Federal Reserve Board~~ OTS evidencing the valid existence of the ~~MHC and the Mid-Tier Holding Company~~Bank; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Dallas evidencing the Bank’s membership therein; ~~(vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company;~~ and (~~viii~~vi) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (om) At or prior to the Closing Date, counsel to the Agent shshall 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 to the Agent as to the statements made therein.

Appears in 1 contract

Sources: Agency Agreement (OmniAmerican 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, 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 ~~Offering~~ 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, 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 Association's knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ 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 ~~▇▇▇▇~~Elia▇ ▇▇▇▇, ▇~~▇ LLP, special~~ ▇ecial counsel for the ~~Primary Parties~~Company, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementthe 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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~~State of Delaware and has corporate power and authority to own, ~~not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package~~ lease and ~~the Prospectus, no event has occurred that should have been set forth in an amendment or supplement~~ operate its properties and to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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. All of the outstanding capital stock of the Company is duly authorized and validly issued, and ~~since the respective dates~~ upon payment therefor, will be fully paid and non-assessable. (ii) The Association has been organized and is a validly existing federal savings association in capital stock form of organization, authorized to conduct its business and own its property as ~~of which information is given~~ described in the Registration Statement and Prospectus. All of the ~~Prospectus~~outstanding capital stock of the Association will be authorized and upon payment therefor, ~~there shall not have~~ 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. (iii) The Mid-Tier Holding Company has been ~~any Material Adverse Effect that~~ organized as a, and is a validly existing, federal corporation, authorized to conduct its business and own its property as described in the ~~Agent’s reasonable judgment sufficiently material~~ Registration Statement and ~~adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the~~ Prospectus. (hiv) ~~Prior~~ The MHC has been organized and is a validly existing federal mutual holding company authorized to conduct its business and ~~at the Closing Date: (i)~~ own its property as described in the ~~reasonable opinion~~ Registration Statement and Prospectus. (v) The Association is a member of the ~~Agent, there shall have been no material adverse change in the financial condition, results of operations or business~~ FHLB-Atlanta. The deposit accounts of the ~~Primary Parties considered as one enterprise~~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, ~~from and as~~ to such counsel's Actual Knowledge, threatened; the description of the ~~latest date~~ liquidation account as ~~of which such condition is~~ set forth in the Prospectus under the caption "The Conversion--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. (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 except for shares issued upon incorporation of the Company no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offerings 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 the Prospectus, ~~other than transactions referred to or contemplated therein~~will be duly and validly issued and fully paid and non-assessable; ~~(ii) none~~ the issuance of the ~~Primary Parties shall have received from any Governmental Entity any direction (oral or written)~~ Shares is not subject to ~~make any material change in~~ preemptive rights and the ~~method~~ terms and provisions of ~~conducting their business with which it has not complied~~ the Shares conform in all material respects ~~(which direction, if any, shall have been disclosed~~ to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 description thereof contained in the Prospectus. To such counsel's Actual Knowledge, ~~shall be pending or~~upon the issuance of the Shares, good title to the ~~knowledge~~ 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. (vii) The execution and delivery of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting this Agreement and the consummation of the transactions contemplated hereby have been validly authorized by all necessary action on the part of the Company, the Mid-Tier Holding Company, the MHC, and the Association; and this Agreement is a valid and binding obligation of the Company, the Mid-Tier Holding Company, the MHC and the Association, 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 equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law). (viii) The Conversion ~~or Offering~~ Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no ~~statute~~action has been taken, ~~rule~~ and to such counsel's Actual Knowledge, none is pending or ~~regulation shall have~~ threatened, to revoke any such authorization or approval. (ix) The Plan has been ~~enacted~~adopted by the required vote of the directors of the Company, ~~entered~~the Mid-Tier Holding Company, ~~promulgated~~ the MHC and the Association and, based upon the certificate of the inspector of election, by the members of the MHC, the stockholders of the Mid-Tier Holding Company and the stockholders of the Association. (x) Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or ~~enforced by~~ other order of or notice to any ~~Governmental Entity that prohibits~~ federal or ~~makes illegal~~ 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 or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom~~ 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 ~~jurisdictions~~ rules and regulations of the NASD and/or the Nasdaq National Market (as ~~the Agent shall have reasonably requested and as agreed~~ to ~~by the Primary Parties~~which no opinion need be rendered). (ixi) ~~Concurrently with~~ The Registration Statement is effective under the ~~execution of this Agreement~~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. (xii) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the ~~Agent shall receive a letter from BDO USA~~Conversion Application, ~~LLP~~including the Prospectus contained therein, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply complied as to form in all material respects with the requirements of the Conversion Regulations, the HOLA and all applicable ~~accounting requirements and related published~~ rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data and accounting information 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 ~~SEC~~ 1933 Act and the 1933 ~~Act;~~ Act Regulations, and (ii) ~~stating that~~ the Prospectus (Aother 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) ~~during~~ complied as to form in all material respects with the ~~period from the date~~ requirements of the ~~recent developments financial information included~~ 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law. (xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the ~~“Recent Developments” section~~ Registration Statement and Prospectus, and the form of certificate used to evidence the ~~Prospectus~~ Shares is in proper form. (xv) 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, the Mid-Tier Holding Company or the Association is a ~~specified date~~ party or of which any of their property is the subject, which are not ~~more than three business days prior to~~ described in the ~~date of~~ Registration Statement and the Prospectus, ~~except as has been described in~~ including ordinary routine litigation incidental to the ~~Prospectus~~Company's, ~~there was any increase in long-term debt of~~ the MHC's, the Mid-Tier Holding Company's or the Association's business, ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~are, ~~or decreases~~ considered in the ~~total assets~~aggregate, ~~total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and~~ not material. (Bxvi) during the period from the date of 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 ProspectusTo such counsel's Actual Knowledge, there ~~were any decreases~~are no material contracts, ~~as compared with the corresponding period in the preceding fiscal year~~indentures, ~~in total interest income~~mortgages, ~~net interest income~~loan agreements, ~~net interest income after provision for loan losses~~notes, ~~income before income tax expense~~ leases or ~~net income of the Mid-Tier Holding Company; and (iii) stating that, in addition~~ other instruments required to ~~the audit~~ be described or referred to in ~~their opinion included~~ 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 ~~Prospectus~~ Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion 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~~ information required to ~~in clause~~ be shown. (iixvii) ~~of this subsection (i)~~To such counsel's Actual Knowledge, ~~they have compared with~~ the ~~general accounting records of the Mid-Tier Holding~~ Company, ~~which are subject to the internal controls of~~ the Mid-Tier Holding Company, the ~~accounting system~~ MHC and ~~other data prepared by~~ the ~~Mid-Tier Holding Company~~Association have conducted the Conversion, ~~directly from such accounting records~~in all material respects, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shapplicable

Appears in 1 contract

Sources: Agency Agreement (Community Savings Bankshares Inc /De/)

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 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~FRB), 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 ~~Federal Reserve Board~~ FRB or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and the Conversion Application and~~ SEC, the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB and any other applicable regulator, and the Charter Conversion Application shall have been approved by the 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB, the NYSDFS, the FDIC or any other ~~federal~~ 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 ~~authority~~court 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~~benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Luse Gorman, special counsel for the ~~Primary~~ Lake Shore Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, 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 ~~▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇~~ Kilpatrick Townsend & ~~▇▇▇▇▇▇▇▇~~ Stockton LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Lake Shore Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable~~ request and the opinion of Luse Gorman delivered pursuant to ~~the Agent~~subsection (c) above. (e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ Luse Gorman relating to the Offering, 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~~ 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 ~~Counsel~~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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Lake Shore Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the 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 and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Lake Shore Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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 Parties~~their knowledge, threatened by the ~~Commission~~ SEC or any state or federal authority; (vixii) no order suspending the Conversion, the 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~~their knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the FRB, the OCC, the FDIC or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 FRB or any other applicable ~~regulator approving~~ regulatory agency; and (xv) no order suspending the ~~Conversion~~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~~ 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 ~~Prospectus~~General 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 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~~ Lake Shore Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Lake Shore Party since the latest dates as of which the financial condition of the Lake Shore Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the ~~Primary~~ Lake Shore Parties shall have received from ~~any Governmental Entity~~ the OCC or the FRB 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~~direction (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Lake Shore Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; 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 ~~BDO USA~~Yount, ~~LLP~~Hyde & Barbour, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~Yount, ~~LLP~~ Hyde & Barbour, 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 financial statements and related notes of the Mid-Tier ~~Holding~~ Company as of December 31, ~~2014~~2024, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for the ~~six months~~ year ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Mid-Tier Company prepared by the Mid-Tier Company, a reading of the minutes of the meetings of the Boards of Directors of each of the 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 financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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 consolidated long-term or short-term debt of the Mid-Tier ~~Holding~~ Company; or (C), ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~except as set forth in said letter, ~~or decreases~~ there was any decrease in the consolidated total assets, total loans, the allowance for ~~loan~~ credit losses, total ~~deposits~~ deposits, or total ~~equity~~ capital accounts of the Mid-Tier ~~Holding~~ Company ~~and (B) during the period from~~ at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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~~ ; or (D) there was any decrease in ~~the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in~~ consolidated total interest income, net interest income, net interest income after provision for ~~loan~~ credit losses, non-interest income ~~before income tax expense~~ or net income or increase in non-interest expense or the provision for credit losses of the Mid-Tier ~~Holding~~ 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 (i), they have compared with the general accounting records of the Mid-Tier ~~Holding Company~~Company and the Bank, which are subject to the internal controls of the Mid-Tier ~~Holding Company~~Company and the Bank, the accounting system and other data prepared by the Mid-Tier ~~Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shreas

Appears in 1 contract

Sources: Agency Agreement (Lake Shore 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 Parties~~ Company, herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company~~ MHC-2 Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Malizia Spidi & Fisch, PC, special ~~counsel for the Primary Parties, which shall also state that ▇▇▇~~▇▇▇▇▇▇▇ ▇▇▇ ▇he ▇▇▇▇▇~~▇ & ▇▇▇▇▇▇▇▇ LLP may rely on~~ ny in form and substance to the effect that: (i) 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 ~~opinion~~ 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 ~~rendering its opinion~~ 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 ~~Section 8(d~~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 time the MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the MHC-2 Application, including the 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). (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 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, ~~in form and substance as attached hereto as Exhibit C.~~ (dii) At seeking to prevent the ~~Closing Date~~offer, ~~the Agent shall have received the favorable opinion, dated as~~ sale or issuance of the ~~Closing Date~~ Shares, or (iii) which are required to be disclosed in the Registration Statement and ~~addressed to the Agent and for its benefit~~Prospectus, ~~of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent~~other than those disclosed therein. (exv) ~~A blue sky memorandum~~ 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ the OTS or the FDIC to make any material change in the ~~Offering~~method of conducting its respective business. (xvii) To such counsel's Actual Knowledge, ~~including Agent’s participation therein~~there are no material contracts, ~~shall have~~ 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 ~~furnished prior~~ issued by the OTS, the Commission, the FDIC, or any state authority to suspend the ~~mailing~~ 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 ~~Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state~~ final action of the ~~Agent may rely. The blue sky memorandum will relate to~~ OTS approving the ~~necessity of obtaining or confirming exemptions~~Plan, ~~qualifications~~ the MHC-2 Application or the ~~registration of the Shares under applicable state securities law~~Prospectus. (fxix) ~~At the Closing Date~~To such counsel's Actual Knowledge, the ~~Agent shall receive a certificate~~ 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, the Company and the Bank are in all material respects complying therewith. (xx) To such counsel's Actual Knowledge, none of the ~~Chief Executive Officer~~ 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 ~~Chief Financial Officer~~ Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of ~~each~~ this Agreement, the incurrence of the ~~Primary Parties~~ 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 reasonably satisfactory~~ 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 ~~Agent’s Counsel~~securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, ~~dated~~ writ, injunction or decree. (xxi) Except as 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 ~~such Closing Date,~~ 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 ~~effect that: (i) they have carefully examined~~ 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 ~~their opinion~~the MHC-2 Application, at the ~~time~~ Registration Statement or the Prospectus ~~became authorized~~ and do not assume any responsibility for ~~final use~~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 Company), nothing has come to their attention that would lead them to believe that the MHC-2 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 respective dates~~ . In giving such opinion, such counsel may rely as to all matters of ~~which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment~~ fact on certificates of officers or supplement to the Prospectus 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, business or prospects directors of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the ~~Mid-Tier Holding Company; (iv)~~ 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 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 ~~certificate from the New Jersey Banking Department evidencing the good standing~~ director or executive officer of the ~~Bank; (v)~~ Company, the MHC or the Bank shall have received a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 copy of such ~~exchanges~~ 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 present laws be changed by ~~order of the Commission~~ legislative or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shregulatory ac

Appears in 1 contract

Sources: Agency Agreement (MSB 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal ~~Reserve Board~~ Reserve, the FDIC, and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal ~~Reserve Board not later than 5:30 p.m. on~~ Reserve, as applicable, as of the date of this ~~Agreement~~Agreement 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, 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 initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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 Federal Reserve, the Commission or ~~any state authority; (vi) no order suspending~~ the Conversion, the 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 Federal Reserve Board FDIC or any other ~~federal or state~~ regulatory authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; 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 Parties~~Company. (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 ~~BDO USA, LLP,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ dated ~~as of~~ the date hereof and addressed to the Agent: , such letter (i) confirming that ~~BDO USA, 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 1933 Act Regulations and the PCAOB, and stating in effect that in ~~its~~ the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, the financial statements ~~and related notes~~ of the ~~Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion~~ Bank 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 ~~SEC and the 1933 Act~~Commission thereunder; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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)~~generally accepted auditing standards) consisting of a review (in accordance with ~~Statement of~~ Auditing ~~Standards~~ Standard No. ~~100, Interim Financial Information~~4105) of the latest available unaudited interim financial statements of the ~~Mid-Tier Holding Company~~ Bank prepared by the ~~Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived~~Primary Parties, a reading of the minutes of the meetings of the Boards of Directors ~~and committees of each~~ of the Primary Parties and committees thereof and consultations with officers of the ~~Mid-Tier Holding Company~~ Primary Parties 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~~ generally accepted accounting ~~requirements of the Commission, and GAAP~~ principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus. ; or (kB) At except as stated in such letter, during the ~~Closing Date,~~ period from the ~~Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent~~ date of the ~~Primary Parties and is experienced and expert~~ latest unaudited financial statements included 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 Prospectus to a ~~sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is~~ specified date 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 more than three business days prior to the ~~Closing Date, the Agent shall receive: (i) a copy~~ date of the ~~letters from the Federal Reserve Board~~ Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other ~~applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use~~ form of ~~the Prospectus;~~ debt other than deposits), non-performing loans or special mention loans, foreclosed assets (~~ii) a copy~~ including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent to the date hereofforeclosure), ~~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~~ decrease in the ~~over-the-counter market~~deposits, total assets, total loans, the allowance for loan losses or equity, or ~~quotations halted generally on the Nasdaq Stock Market~~there was any decrease in total interest income, ~~or minimum or maximum prices for trading have been fixed~~net interest income, 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or net interest income after the ~~date hereof~~provision for loan losses, 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 shincome

Appears in 1 contract

Sources: Agency Agreement (ECB 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~~ Sound Financial Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ FRB or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB and 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ FRB, the 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Silver, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, L.L.P., special counsel for the 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 ▇▇▇▇▇~~▇▇▇▇~~▇ Price P.C., special counsel for the Agent, in form and substance as attached hereto as Exhibit D. (e) A blue sky memorandum from Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ L.L.P. relating to the Offering, 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 Silver, ▇▇~~▇▇▇~~ ▇▇▇▇▇▇ ~~LLP~~ & Taff, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 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 and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Sound Financial Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ FRB, the FDIC, the OCC or any other ~~federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ Sound Financial Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 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~~ Sound Financial Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Sound Financial Parties shall have received from ~~any Governmental Entity~~ the FRB, 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) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Sound Financial Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingSound 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 ~~BDO USA,~~ ▇▇▇▇ ▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ ▇▇▇▇ ▇▇▇▇▇ 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, ~~2014, June 30, 2014~~ 2011 and ~~June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013~~2010, 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 ~~SEC~~ FRB and any other applicable regulator and the 1933 Act; (ii) stating ~~that~~ 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 of each of the 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 OCC and the FDIC 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-~~Tier Holding Company~~Tier, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (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 ~~Holding Company and (B) during the period from~~ at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the Mid-~~Tier Holding Company~~Tier, which are subject to the internal controls of the Mid-~~Tier Holding Company~~Tier, the accounting system and other data prepared by the Mid-~~Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 D 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~~ 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 ▇▇▇▇ ▇▇▇▇▇ 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 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 563b.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 letters from the ~~Federal Reserve Board~~ FRB and any other applicable regulator approving the ~~Conversion Application and~~ Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) ~~a copy of the order from~~ confirmation that the Commission ~~that~~ declared the Registration Statement effective; (iii) certificates from the ~~Federal Reserve Board~~ FRB evidencing the valid existence of the MHC and the Mid-~~Tier Holding Company~~Tier; (iv) a certificate from the ~~New Jersey Banking Department~~ OCC evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-~~New York~~ Seattle evidencing the Bank’s membership therein; (vii) a certificate from the Maryland ~~State~~ Department of Assessments ~~and~~ & Taxation evidencing the good standing of the Holding ~~Company;~~ Company and (viii) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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 shshall 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

Sources: Agency Agreement (Sound Financial 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 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 ~~Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator),~~ Pennsylvania Banking 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 Federal ~~Reserve Board~~ Reserve, the FDIC, the PA Department and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the PA Department, the FDIC and the Federal ~~Reserve Board not later than 5:30 p.m. on the date of this Agreement~~Reserve, ~~or with the Agent’s consent at a later time and date; and~~ as 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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~L▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 opinion~~receive a letter from Wolf & Company, P.C. dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~SSB 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ SSB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal ~~Reserve Board~~ Reserve, the FDIC or ~~any other applicable regulator~~ the PA Department in approving the ~~Conversion~~Applications 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 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~~ SSB Parties ~~considered~~ independently, or the SSB Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ Pennsylvania Application and a copy of the letter or order from the ~~Federal Reserve Board and any other applicable regulator~~ PA Department approving the ~~Conversion Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Pennsylvania Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence~~ Holding Company Application, (iv) a copy of the ~~MHC and~~ letters or orders from the ~~Mid-Tier Holding Company;~~ FDIC approving the FDIC Applications, (ivv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Pittsburgh evidencing the ~~good standing of the~~ Bank; ’s membership therein, (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts~~; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein;~~ , and (vii) ~~a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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~~ 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 ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering or the delivery~~ sale of the ~~Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Shares. (om) ~~At or prior~~ Prior to and at the Closing Date, ~~counsel~~ none of the SSB Parties will have received from the Federal Reserve, the FDIC, or the 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). (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 shand 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.

Appears in 1 contract

Sources: Agency Agreement (SSB 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on the date of this Agreement~~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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 opinion~~receive a letter from BKD, LLP dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~CF 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ CF Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 ~~initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ 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 ▇▇▇▇▇▇ & 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 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~~ CF Parties ~~considered~~ independently, or the CF Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Cincinnati evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing date, none of the CF 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). (n) All such opinions, certificates, letters and documents will be in compliance with the ~~Offering~~ 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 CF Party and delivered to the Agent or to counsel for the ~~delivery of~~ Agent shall be deemed a representation and warranty by such CF Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the ~~Closing Date~~mailing of the Prospectus, ~~counsel~~ to CBI 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 ~~Agent sh~~necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.

Appears in 1 contract

Sources: Agency Agreement (Cincinnati 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~~ MW Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ ODFI, the FDIC and ~~any other applicable regulator~~the 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 ~~Federal Reserve Board or any other applicable regulator~~ODFI, the FDIC and the FRB to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ SEC, the Conversion Application shall have been approved by the ODFI, the FDIC, and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ ODFI, the FDIC, the FRB or any other ~~federal~~ 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 ~~authority~~court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. (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~~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 Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementHolding 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 ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the MW Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable~~ request and the opinion of ▇▇▇▇ delivered pursuant to ~~the Agent~~Section (c). (e) A blue sky memorandum from ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP~~ relating to the Offering, 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ 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~~ 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 MW Parties independently, or of the ~~Primary~~ MW Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ MW Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ SEC, the ODFI, the FDIC, the FRB or any ~~other federal or~~ state authority; and (~~vii~~viii) to the knowledge of the ~~Primary~~ MW Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ ODFI or ~~any other applicable regulator~~ the FDIC approving the ~~Conversion~~Plan 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 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~~ MW Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 MW Party since the latest dates as of which the financial condition of the 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 ~~any Governmental Entity~~ the ODFI, the FDIC or the FRB 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the MW Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~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 ~~material~~ outstanding indebtedness; (ivv) 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 ~~reasonably be expected to~~ have a Material Adverse Effect; (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 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~~ MW Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of ~~December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended~~ June 30, 2014 and 2013, 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 SEC; (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 financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the MW Parties 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) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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-Tier Holding Company~~FHLB borrowings, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, ~~the allowance for loan losses~~total deposits, ~~total deposits~~ or ~~total~~ equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest balance sheet included in the Prospectus; or (D) there was any decrease in net income (loss) or net interest income, non-interest income or increase in non-interest expense of the Bank, 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 ~~to a specified date not more than three business days~~ and ended on the latest month end prior to the date of the ~~Prospectus, except as has been described in the Prospectus, there were any decreases,~~ Prospectus as compared ~~with~~ to the corresponding period in the preceding ~~fiscal~~ year~~, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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 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 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 ~~letters~~ letter from the ~~Federal Reserve Board~~ ODFI and ~~any other applicable regulator~~ the FDIC approving the Conversion ~~Application and the Holding Company Application~~ Application, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iii) a copy of the order from the ~~Commission that declared~~ SEC declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv) a certificate of good standing from the ~~New Jersey Banking Department~~ State of Maryland evidencing the good standing of the Holding Company; (v) a certificate of good standing from the ODFI and/or the Secretary of State of Ohio, as applicable, evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-~~New York~~ Cincinnati evidencing the Bank’s membership therein; and (~~vii~~viii) a ~~certificate from the Maryland State Department~~ certified copy of ~~Assessments and Taxation evidencing the good standing~~ each of the Holding Company; ’s and ~~(viii) such other documents~~ the Bank’s Articles of Incorporation, Constitution and ~~certificates~~ Bylaws, as ~~the Agent may reasonably request~~applicable. (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 other than temporary trading halts~~authority; (ii) a general moratorium on the operations of commercial banks, or savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, the Agent and counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the p

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, 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 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 Reorganization Regulations, the Charter Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the MHC-1/MHC-2 Application, the Charter Conversion Application and the Holding Company Application ~~shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 or the Bank’s knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ OTS, the 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, special counsel for the Company, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 Company and the ~~respective dates~~ MHC have 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~~ 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 Reorganization will be a validly existing federally-chartered savings bank in stock form, 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 Reorganization 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-Boston. 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 ~~event has occurred that should have been~~ proceedings for the termination or revocation of such insurance are pending or threatened; (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 ~~an amendment or supplement to~~ the Prospectus ~~that 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business caption “Capitalization,” and ~~the conditions set forth in this Section 8~~ no Common Shares have been ~~satisfied; (iii) 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; at the time of the Reorganization, 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 ESOP lending subsidiary 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 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 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, 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 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 ~~Primary Parties~~ 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 MHC-1/MHC-2 Application and the Charter Conversion Application have 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) 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, the MHC and the Bank, and based upon the clerk’s certificate at the Special Meeting, by the Corporators of the Bank. (ix) 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 issuance of the 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 (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 MHC-1/MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the MHC-1/MHC-2 Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations except as waived in writing 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 (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 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 Reorganization or 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-1/MHC-2 Application, the Charter 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 MHC-1/MHC-2 Application, the Charter Conversion Application, the Registration Statement or the Prospectus. The description in the MHC-1/MHC-2 Application, the Charter 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. (xviii) Except as waived in writing or otherwise approved by the OTS, the Plan complies in all material respects with all ~~material agreements~~ applicable federal law, rules, regulations, decisions and ~~satisfied all conditions on their part~~ orders including, but not limited to, the Reorganization Regulations; to ~~be performed or satisfied at or prior to the Closing Date~~such counsel’s Actual Knowledge, ~~including the conditions contained in this Section 8; (v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan, the MHC-1/MHC-2 Application, the Charter Conversion Application, the Holding Company Application or the Prospectus. (gxix) ~~None~~ 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 ~~the Primary Parties shall have sustained, since the date of the latest financial statements included~~ 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 ~~General Disclosure Package~~ MHC and ~~Prospectus~~the Bank are in all material respects complying therewith. (xx) To such counsel’s Actual Knowledge, neither the MHC, 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 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 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 ~~loss or interference with its business from fire~~contract, ~~explosion~~indenture, ~~flood~~ mortgage, loan agreement, note, lease or other ~~calamity~~instrument to which the MHC, ~~whether~~ the Company or ~~not covered~~ the Bank is a party or by ~~insurance~~which any of them may be bound, or ~~from~~ to which any ~~labor dispute~~ 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, Bank or MHC, 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 ~~or governmental action~~order, ~~order~~ writ, injunction or decree. (xxi) Except as waived in writing or otherwise approved by the OTS, ~~otherwise than as set forth~~ 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 “Supervision and Regulation,” “Federal and State Taxation,” “The Reorganization and the Stock Offering,” “Restrictions on the Acquisition of Georgetown Bancorp, Inc. and Georgetown Savings Bank” and “Description of Capital Stock of Georgetown Bancorp, Inc.,” 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 Reorganization process in the Prospectus under the caption “The Reorganization 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 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 the Stock Offering — Tax Effects of the Reorganization” has been reviewed by such counsel and fairly describes the federal and state tax opinions rendered by them and Wolf & Company, P.C., respectively, to the Company, the MHC and the Bank with respect to such matters. In addition, such counsel shall state that during the preparation of the MHC-1/MHC-2 Application, the Holding Company Application, the Registration Statement and the Prospectus, they participated in conferences with certain officers of, the independent public and ~~since~~ internal accountants for, and other representatives of, the ~~respective dates as~~ Company, the MHC and the Bank, at which conferences the contents of ~~which information is given in~~ the MHC-1/MHC-2 Application, the Charter Conversion Application, the Holding Company Application, the Registration Statement and the ~~Prospectus~~Prospectus and related matters were discussed and, ~~there shall~~ while such counsel have not ~~have been any Material Adverse Effect that is~~ confirmed the accuracy or completeness of or otherwise verified the information contained in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 AgreementMHC-1/MHC-2 Application, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) At the Closing DateCharter Conversion Application, the Holding Company ~~shall receive a letter from RP Financial~~Application, 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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~~ Prospectus and ~~in the manner contemplated in the Registration Statement~~ do not assume any responsibility for such information, based upon such conferences and ~~the Prospectus. (o) At or prior to the Closing Date, counsel to the Agent sh~~a revi

Appears in 1 contract

Sources: Agency Agreement (Georgetown 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 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 herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and~~ prospectus contained in the ~~Holding Company Application~~ MHC-2 shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ OTS for mailing prior to the ~~date~~ commencement of ~~this Agreement~~the Offering, ~~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 knowledge~~ 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~~ Offering shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ ' best knowledge, threatened by the OTS, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal or state authority~~governmental 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 benefit~~Date, of ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ , P.C., and/or local counsel acceptable to ~~Section 8(d) of this Agreement,~~ the Agent 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 under the federal laws of the United States of America, 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 each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. (ii) The Bank is a duly organized and validly existing federally chartered stock savings bank with full power and authority to own its properties and to conduct its business as ~~Exhibit C.~~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 OTS. (iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings bank holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, all such licenses, permits and other governmental authorization are in full force and effect, and the Holding Company and the Bank are complying therewith in all material respects. (iv) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened. (v) The MHC is duly organized and 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. (vi) Upon consummation of the Offering, (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 the Bank's reorganization into the mutual holding company form of organization); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) At the ~~Closing Date, the Agent shall have received the favorable opinion, dated as~~ issuance of the ~~Closing Date and addressed~~ shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the ~~Agent and for its benefit~~best knowledge of such counsel, ~~of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP~~under any contract, ~~special counsel~~ indenture, agreement, instrument or other document, except for the ~~Agent, in form and substance as reasonably acceptable to~~ subscription rights under the ~~Agent~~Plan. (evii) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to~~ The execution and delivery of this Agreement and the ~~Offering, including Agent’s participation therein, shall~~ consummation of the transactions contemplated hereby have been ~~furnished prior to~~ duly authorized by all necessary corporate action on the ~~mailing~~ part of the ~~Prospectus~~Primary Parties; and this Agreement constitutes a valid, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 legal and ~~the Chief Financial Officer~~ binding obligation of each of the Primary ~~Parties~~ Parties, enforceable in ~~form and substance reasonably satisfactory~~ accordance with its terms, except to the ~~Agent’s Counsel~~extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, ~~dated as of such Closing Date,~~ and except to the ~~effect that:~~ 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 (~~i) they have carefully examined~~ including the ~~Prospectus and, in their opinion, at~~ laws relating to 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 rights of the ~~circumstances under which they were made, not misleading;~~ contracting parties to equitable remedies). (iiviii) ~~since~~ The Plan has been duly adopted by the ~~respective dates as~~ boards of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects directors of the Primary Parties ~~independently, or of the Primary Parties considered as one enterprise, whether or not arising~~ in the ~~ordinary course of business~~ manner required by the Conversion Regulations. (ix) The MHC-2 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 ~~this Section 8 have been satisfied; (iii) the representations~~ such OTS approvals and ~~warranties~~ 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 ~~Section 4 are true and correct~~ connection with the ~~same force~~ execution and ~~effect as though expressly made at~~ delivery of this Agreement, the offer, sale and as issuance of the ~~Closing Date;~~ Shares and the consummation of the Offering. (ivx) The Registration Statement has become effective under the ~~Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date~~1933 Act, ~~including the conditions contained in this Section 8; (v)~~ no stop order suspending the effectiveness of the Registration Statement has been ~~initiated or~~issued, and, to the ~~knowledge~~ best of ~~the Primary Parties~~such counsel's knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for that purpose have been instituted or threatened. (xi) The material tax consequences of the Offering are ~~pending or,~~ set forth in the Prospectus under the caption "Summary - Tax Consequences of the Offering." The information in the Prospectus under the caption "Summary - Tax Consequences of the Offering." has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP to the ~~knowledge~~ Primary Parties with respect to such matters. (xii) The terms and provisions of the ~~Primary Parties~~shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, ~~threatened~~ and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form. (xiii) At the time the MHC-2 was approved, the MHC-2 (as amended or supplemented) including the Prospectus contained therein, 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 ~~Federal Reserve Board or any~~ OTS (other ~~federal or state authority;~~ than the financial statements, notes to financial statements, financial tables and ~~(vii)~~ other financial and statistical data included therein and the appraisal valuation as to ~~the knowledge of the Primary Parties~~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 ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~MHC-2. (gxiv) ~~None of~~ At the ~~Primary Parties shall have sustained, since~~ time that the ~~date of the latest financial statements included in~~ Registration Statement became effective the Registration Statement, including the ~~General Disclosure Package and Prospectus~~Prospectus contained therein (as amended or supplemented) (other than the financial statements, ~~any material loss or interference with its business from fire~~notes to financial statements, ~~explosion, flood~~ financial tables 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~~ financial and statistical data included therein 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 appraisal valuation as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the ~~applicable accounting~~ requirements of the 1933 Act and ~~related published~~ the rules and regulations promulgated thereunder. (xv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the ~~SEC and the 1933 Act;~~ invalidity of this Agreement or (ii) ~~stating that (A) during~~ seeking to prevent the ~~period from~~ Offering or the ~~date~~ offer, sale or issuance of the ~~recent developments financial~~ Shares. (xvi) The 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-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to~~ under the ~~date~~ captions "Supervision and Regulation," "Federal and State Taxation," "Restrictions on the Acquisition of ~~the Prospectus~~Colonial Bankshares, ~~except as has been described in the Prospectus~~Inc. and Colonial Bank, ~~there were any decreases~~FSB," "Description of Capital Stock of Colonial Bankshares, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; Inc.," 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, "The Offering" to the extent ~~specified in such letter~~that it constitutes matters of law, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) summaries of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 legal matters, ~~nothing came to their attention which caused them to believe that: (A)~~ documents or proceedings, or legal conclusions, has been reviewed by 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. (k) 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 the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies~~ accurate 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,~~ except 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~~ financial statements and other financial data included therein as 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 Datewhich such counsel need express no opinion). (m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Colonial 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the 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 or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefore~~ therefor initiated or, to 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 ~~Commission~~Federal Reserve Board, the ~~Federal Reserve Board~~ 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 benefit~~Date, of ▇▇▇▇▇ ▇▇▇▇▇~~▇ LLP~~▇▇▇, 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 Nebraska 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, which~~ Parties shall ~~also~~ 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 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~~ 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~~Prospectus, ~~of ▇▇▇▇▇~~▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & 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, ~~special~~ 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 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 Registration Statement, or Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇, PC (“▇▇▇▇ ▇▇▇▇▇▇”), counsel for KBW, with respect to such matters as the ~~Agent~~Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. (4) The letter of ▇▇▇▇ ▇▇▇▇▇▇ in form and substance ~~as reasonably acceptable~~ to the ~~Agent~~effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(4)), ▇▇▇▇ ▇▇▇▇▇▇ 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 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ addressed to the Holding Company and the Agent relating to the Offering, 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 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 McGladrey LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that McGladrey 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 McGladrey 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 December 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 McGladrey 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 Counsel~~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 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) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that 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~~results of operation, capital, ~~properties,~~ properties or business ~~or prospects~~ affairs of the Primary ~~Parties independently~~Parties, ~~or of the Primary Parties~~ considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing ~~Date,~~ Date including the conditions contained in this Section 810; (v) no stop order ~~suspending the effectiveness of the Registration Statement~~ has been ~~initiated~~ issued or, to the ~~knowledge~~ best of ~~the Primary Parties~~their knowledge, ~~threatened~~ is threatened, by the Commission or any ~~state authority~~other governmental body; (vi) no order suspending the Offering, the Exchange, the Conversion, the ~~Offering~~ 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 Federal Reserve ~~Board~~ Board, the Commission, or any other federal or state authority; ~~and~~ (vii) to the ~~knowledge~~ best of ~~the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve Board ~~or any other applicable regulator~~ 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 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 Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ~~Prospectus~~Prospectus 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~~condition or in the earnings, ~~results of operations~~ capital, properties or business affairs of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) ~~none~~ there shall have been no material transaction entered into by the Primary Parties, independently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shis

Appears in 1 contract

Sources: Agency Agreement (Equitable 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 Parties~~ MHC, the Company and the Bank, herein are, at and as of the commencement of the 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 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 ~~Conversion Regulations (except to~~ Reorganization Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~laws of Illinois, 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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion~~ MHC-1/MHC-2 Application and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ OTS not later than 5:30 p.m. on the date of this Agreement, or with the ~~Agent’s~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the ~~Agent~~MHC, the Company and the Bank in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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 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 Company and the ~~respective dates~~ MHC have 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~~ 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 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 described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank, upon completion of the Reorganization, will be authorized and, upon payment therefore, 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-Chicago. 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 ~~event has occurred that should have been~~ 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 ~~an amendment or supplement to~~ the Prospectus ~~that 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, business or prospects~~ caption “Capitalization,” and no shares of capital stock of the ~~Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8~~ Company have been ~~satisfied; (iii) 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; at the time of the Reorganization, the Common Shares subscribed for pursuant to the Reorganization 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 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 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 ~~Primary Parties~~ 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-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. (viii) The Plan has been duly adopted by the required vote of the directors of the MHC, 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 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, 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 time the MHC-1/MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the MHC-1/MHC-2 Application, including the 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). (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 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 Reorganization or 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) None of the MHC, the Company or 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, none of the MHC, the Company or 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-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. (xviii) Except as waived or otherwise approved by the OTS, the Plan complies in all material respects with all ~~material agreements~~ applicable federal law, rules, regulations, decisions and ~~satisfied all conditions on their part~~ orders including, but not limited to, the Reorganization Regulations; to ~~be performed or satisfied at or prior to the Closing Date~~such counsel’s Actual Knowledge, ~~including the conditions contained in this Section 8; (v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel‘s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan, the MHC-1/MHC-2 Application, the Holding Company Application or the Prospectus. (gxix) ~~None~~ 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 ~~the Primary Parties shall have sustained, since the date of the latest financial statements included~~ 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 ~~General Disclosure Package~~ MHC, the Company and ~~Prospectus~~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 any material ~~loss~~ respect, conflict with or ~~interference with its business from fire~~constitute a breach of, ~~explosion~~or default under, ~~flood~~ 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 ~~calamity~~instrument to which the MHC, ~~whether~~ the Company or ~~not covered~~ the Bank is a party or by ~~insurance~~which any of them may be bound, or ~~from~~ to which any ~~labor dispute~~ 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, 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 ~~or governmental action~~order, ~~order~~ writ, injunction or decree. (xxi) Except as waived or otherwise approved by the OTS, ~~otherwise than as set forth~~ the MHC’s, Company‘s and the Bank’s respective Charters 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 “Supervision and Regulation,” “Federal and State Taxation,” “The Reorganization and the Stock Offering,” “Restrictions on the Acquisition of Ben Franklin Financial, Inc. and Ben Franklin Bank of Illinois” and “Description of Capital Stock of Ben Franklin Financial Inc.,” 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 Reorganization 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 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 Stock Offering — Tax Effects of the Reorganization” has been reviewed by such counsel and fairly describes the tax opinions rendered to the Company with respect to such matters. In addition, such counsel shall state that during the preparation of the MHC-1/MHC-2 Application, the Holding Company Application, the Registration Statement and the Prospectus, they participated in conferences with certain officers of, the independent public and ~~since~~ internal accountants for, and other representatives of, the ~~respective dates as~~ MHC, the Company and the Bank, at which conferences the contents of ~~which information is given in~~ the MHC-1/MHC-2 Application, the Holding Company Application, the Registration Statement and the ~~Prospectus~~Prospectus and related matters were discussed and, ~~there shall~~ while such counsel have not ~~have been any Material Adverse Effect that is~~ confirmed the accuracy or completeness of or otherwise verified the information contained in the ~~Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with~~ MHC-1/MHC-2 Application, the ~~Offering~~ Holding Company Application, the Registration Statement or the ~~delivery~~ Prospectus and do not assume any responsibility for such information, based upon such conferences and a review 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding documents deemed relevant for the purpose of ~~enjoining or prohibiting the consummation~~ rendering their opinion (relying as to materiality as to factual matters on certificates of ~~the Conversion or Offering~~ officers and 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 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 other factual representations by the Primary Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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~~ has come to their attention ~~which caused~~ that would lead them to believe ~~that: (A) such unaudited interim financial statements and “Recent Developments” information included in~~ that 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. (k) At the Closing DateMHC-1/MHC-2 Application, the Holding Company ~~shall receive a letter from RP Financial~~Application, ~~LC.~~the Registration Statement, ~~dated~~ the ~~Closing Date~~ Prospectus, or any amendment or supplement thereto (~~i) confirming that said firm is independent of~~ other than the ~~Primary Parties and is experienced and expert in~~ financial statements, 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 Regulationsnotes thereto, and ~~(iii~~other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, contained an untrue statement 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 shmater

Appears in 1 contract

Sources: Agency Agreement (Ben Franklin 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application, Merger Application and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement~~OTS, ~~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, 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 benefit~~Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ~~special counsel for the Agent,~~ 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. (e2) ~~A blue sky memorandum from~~ The letter of ▇▇▇▇▇▇▇▇▇▇ & Stockton LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ~~relating~~ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the ~~Offering~~Agent, ~~including Agent’s participation therein, shall have been furnished prior to the mailing~~ representatives of the ~~Prospectus~~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 ~~the Holding Company with a copy thereof addressed to Agent or upon which~~ Section 10(b)(1)), ▇▇▇▇▇▇▇▇▇▇ & Stockton 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 ~~shall~~ that caused ▇▇▇▇▇▇▇▇▇▇ & Stockton 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP. (4) The letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the 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 ▇▇▇▇▇▇▇▇▇▇ & Stockton 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) 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, and the 1934 Act and the 1934 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties as of and for the interim periods ended March 31, 2010 and , 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 non-performing loans, non-performing assets, special mention loans or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for stock option plans) at the date of such letter as compared with amounts shown in the , 2010 unaudited 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, 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 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 Counsel~~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 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) there has not been, since the respective dates as of which information is given in the Registration Statement, ~~the General Disclosure Package and the Prospectus, no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedRegistration Statement; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing ~~Date,~~ Date including the conditions contained in this Section 810; (v) no stop order ~~suspending the effectiveness of the Registration Statement~~ has been ~~initiated~~ issued or, to the ~~knowledge~~ best of ~~the Primary Parties~~their knowledge, ~~threatened~~ is threatened, by the Commission or any ~~state authority~~other governmental body; (vi) no order suspending the Offering, the Exchange, the Conversion, the ~~Offering~~ 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 ~~Federal Reserve Board~~ OTS, the Commission, or any other federal or state authority; ~~and~~ (vii) to the ~~knowledge~~ best of ~~the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the ~~Federal Reserve Board 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 Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ~~Prospectus~~Prospectus 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~~condition or in the earnings, ~~results of operations~~ capital, properties or business affairs of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the Primary Parties, independently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: 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~~ Company, the MHC, the Mid-Tier Holding Company and the Association herein are, at and as of the commencement of the 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board~~ OTS, the SEC or any other ~~applicable regulator~~authority government. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPP.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 Offering, 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 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 and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel~~MHC, 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and ~~(B) during~~ the ~~period from the date of the recent developments financial information included~~ Association, in ~~the Prospectus to a specified date not more than three business days prior~~ form and substance to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating effect 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent,~~ (i) ~~confirming~~ The Company has been duly incorporated and is validly existing in good standing as a corporation under the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (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 Delaware; the MHC has been duly organized and is validly existing in good standing as a ~~review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information)~~ federal mutual holding company under the laws of the ~~unaudited interim financial statements~~ United States of America; the Mid-Tier Holding Company ~~prepared by~~ has been duly incorporated and is validly existing as a federally-chartered holding company in good standing under the ~~Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading~~ laws of the ~~minutes~~ United States 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 ProspectusAmerica. (kii) ~~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~~ Each of the ~~Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations~~Company, (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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments Company have full corporate power and ~~Taxation evidencing the good standing of the Holding Company;~~ authority to own, lease and ~~(viii) such other documents~~ operate their respective properties and ~~certificates~~ to conduct their business 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 described in the Registration Statement and the Prospectus. (oiii) At 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. 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 ~~prior~~ other restrictions. (iv) The Association is a member in good standing of the FHLB-Indianapolis. The deposit accounts of the Association are insured by the FDIC up to the ~~Closing Date~~maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, ~~counsel~~ 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 Depositors, Borrowers and Members - Effect on Liquidation Rights" and "Liquidation Rights" to the ~~Agent sh~~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.

Appears in 1 contract

Sources: Agency Agreement (Dsa Financial Corp)

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 ~~Offering~~ statements of officers and ~~at and as~~ directors of the ~~Closing Date~~Company 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 dates~~hereunder, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ and ~~the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board 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~~ issued, and prior to that time, no stop order proceeding shall have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion 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 ~~Federal Reserve Board~~ General Disclosure Package or the Prospectus or any ~~other federal~~ amendment or supplement to the Registration Statement, the General Disclosure Package or the Prospectus contains an untrue statement of a fact that, in the reasonable opinion of the Agent, is material or omits to state ~~authority~~a 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 ~~Date~~Time, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 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 ▇▇▇▇▇~~▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ~~relating~~ in form and substance to the ~~Offering~~effect that during the preparation of the Registration Statement, ~~including Agent’s participation therein, shall have been furnished prior to~~ the ~~mailing of~~ General Disclosure Package and 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 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) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, (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 reasonably require, in form and substance satisfactory to the Agent. (c) Concurrently with the execution of 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 ~~state~~ have furnished to the Agent ~~may rely. The blue sky memorandum will relate~~ a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the ~~necessity~~ Agent, containing statements and information of ~~obtaining~~ 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 ~~confirming exemptions~~in order to evidence the accuracy of any of the representations and warranties, ~~qualifications~~ or the ~~registration~~ fulfillment of any of the ~~Shares under applicable state securities law~~conditions herein contained. (f) At the Closing ~~Date~~Time, ~~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 Counsel~~Bank, dated ~~as of such~~ the Closing ~~Date~~Time, 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) there has not been, since the respective dates as of which information is given in the ~~Registration Statement, the General Disclosure Package and the~~ Prospectus~~, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that 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~~results of operation, capital, ~~properties,~~ properties or business ~~or prospects~~ affairs of the ~~Primary Parties independently~~Company and the Bank, ~~or of the Primary Parties~~ considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (iii) 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~~Time; (iv) the ~~Primary Parties have~~ Company has complied in all material respects with all material agreements and 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 89; and (v) no stop order ~~suspending the effectiveness of the Registration Statement~~ has been ~~initiated~~ issued or, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened~~ is threatened, by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board 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 Stock 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~~Time: (i) in the reasonable opinion of ~~the Agent,~~ Agent there shall have been no material adverse change in the financial ~~condition~~condition or in the earnings, ~~results of operations~~ operations, capital, properties or business affairs of the ~~Primary Parties~~ Company and the Bank, considered as one enterprise, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the Company or the Bank, independently or considered as one enterprise, from the latest date as of which the financial condition of the Company is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iiiii) ~~none of~~ neither the ~~Primary Parties~~ Company nor the Bank shall have received from ~~any Governmental Entity~~ the FDIC or the 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) and which would be reasonably be expected to have a Material Adverse Effect; (~~iii~~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; (ivvi) 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~~Company or the Bank, threatened against ~~any of~~ the ~~Primary Parties~~ Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; 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 Parties~~Agent. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (ii) a certified copy of the First Amended and Restated Articles of Incorporation of the Company, (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 market~~Exchange, ~~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 FINRA or by order of the Commission or any other governmental authority other than temporary trading ~~halts~~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 a general moratorium on the withdrawal of deposits from ~~commercial banks~~ federally-insured financial institutions declared by either federal or state authorities; (iii) ~~the engagement by the United States in~~ any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities after the date hereof~~, of a national emergency~~ ; or ~~war or~~ (iv) a material ~~decline~~ adverse change in the ~~price of equity~~ United States financial markets or ~~debt securities,~~ elsewhere if the effect of ~~such declaration or decline is so material and adverse~~any of (i) through (iv) herein, in ~~the~~ Agent’s reasonable judgment, ~~to make~~ makes it impracticable or inadvisable to proceed with the Stock Offering ~~or the delivery of the Shares~~ on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (ok) At 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, ~~counsel to~~ the ~~Agent sh~~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 sell the Shares hereunder are subject to ~~be delivered at~~ (i) the accuracy of the representations and warranties on the part of the Company in all material respects on the date hereof, any applicable date referred to in Section 3(u) and as of each Closing Date, ~~are subject, to~~ (ii) the ~~extent not waived in writing~~ performance 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 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 Company of its obligations hereunder ~~to be performed on or before such dates,~~ in all material respects and to (iii) the following further conditions: (a) ~~At the Closing Date, the Primary Parties~~ The Agent shall have ~~conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except~~ received prior to the ~~extent waived~~ initial commencement of sales of Shares hereunder and at every other date specified in Section 3(v) hereof, an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company, or ~~otherwise approved by the 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~~ co▇▇▇▇▇ ▇ati▇▇▇▇tory to the ~~Conversion imposed upon them by~~ Agent addressed to the ~~Federal Reserve Board or any other applicable regulator~~Agent, dated as of such dates and in form and substance satisfactory to the Agent, opining as to the matters set forth in Exhibit A hereto. (b) The Agent shall have received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(w) hereof, an opinion of Miles & Stockbridge, P.C., special counsel for the Company, or other counsel satisfactory to the Agent, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent, covering matters of Maryland law and opining as to the matters set forth in Exhibit B hereto. (c) The Agent shall have received from the independent certified public accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(x) hereof, letters, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent. (d) The Company shall have furnished prior to the initial commencement of sales of Shares hereunder evidence reasonably satisfactory to the Agent and their counsel that the Registration Statement shall have ~~been declared effective~~ become effective. (e) No amendment or supplement to the Registration Statement or Prospectus, including documents incorporated by ~~the Commission and the Conversion Application and the Holding Company Application~~ reference therein, shall have been ~~approved by~~ filed to which the ~~Federal Reserve Board not later than 5:30 p.m. on~~ Agent shall have objected in writing. (f) Prior to the ~~date~~ initial commencement of ~~this Agreement, or with the Agent’s consent at a later time~~ sales of Shares hereunder and ~~date; and at the~~ as of each Closing Date, (i) no stop order suspending the effectiveness of the Registration Statement ~~shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, threatened by the Commission~~ or any ~~state authority~~post-effective amendment thereto, and no order directed at any document incorporated by reference therein and no order preventing or ~~other action~~ suspending the ~~authorization~~ use of ~~the~~ any Prospectus ~~or the consummation of the Conversion shall have~~ has been issued ~~or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened~~ by the Commission, ~~the Federal Reserve Board or any other federal or state authority. (c) At the Closing Date, the Agent shall have received the favorable opinion, dated as~~ and no suspension 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration qualification of the Shares ~~under applicable state securities law. (f) At the Closing Date~~for offering or sale in any jurisdiction, ~~the Agent shall receive a certificate~~ or of the ~~Chief Executive Officer and the Chief Financial Officer~~ initiation or threatening of ~~each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as~~ any proceedings for any of such ~~Closing Date~~purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the ~~effect that:~~ statements therein, not misleading; and (iiii) ~~they have carefully examined~~ the Prospectus ~~and~~and all amendments or supplements thereto, ~~in their opinion~~or modifications thereof, ~~at the time the Prospectus became authorized for final use~~if any, ~~the Prospectus did~~ shall not contain ~~any~~ an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion. (g) ~~None~~ Prior to the initial commencement of ~~the Primary Parties shall have sustained, since the date~~ sales of ~~the latest financial statements included in the Registration Statement~~Shares hereunder and as of each Closing Date, 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 NASD shall not have ~~been~~ raised any ~~Material Adverse Effect that is in~~ objections with respect to the ~~Agent’s reasonable judgment sufficiently material~~ fairness and ~~adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery~~ reasonableness of the ~~Shares on the~~ sales agency terms and ~~in the manner contemplated in the Prospectus~~arrangements. (h) Prior to ~~and at~~ the ~~Closing Date: (i) in the reasonable opinion~~ initial commencement of ~~the Agent, there shall have been no material adverse change in the financial condition, results~~ sales of ~~operations or business of the Primary Parties considered as one enterprise, from~~ Shares hereunder and as of ~~the latest date as of which such condition is set forth in the Prospectus~~each Closing Date, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been ~~qualified or registered~~ approved for ~~offering and sale or exempted therefrom under~~ listing on the ~~securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties~~NYSE. (i) ~~Concurrently with~~ Prior to the ~~execution~~ initial commencement of ~~this Agreement~~sales of Shares hereunder and as of each Filing Date, and each other date referred to in Section 3(u) hereof, the Company shall have delivered to the Agent a certificate of two principal executive officers of the Company certifying to the matters set forth in Exhibit C. (j) Prior to the initial commencement of sales of Shares hereunder and on each Filing Date, the Manager shall ~~receive a letter from BDO USA, LLP, dated~~ have furnished the Agent such documents and certificates as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus Agreement as the Agent may reasonably request~~; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (j) At~~ , including the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 Prospectuscertificate attached as Exhibit D hereto. (k) At All filings with the ~~Closing Date,~~ Commission required by Rule 424 under the ~~Holding Company~~ Securities Act to have been filed 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~~ have been made within the ~~meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared~~ applicable time period prescribed for such filing 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 effectRule. (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 Between 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~~ execution 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 letters from the Federal Reserve Board this Agreement and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent to the date hereof, Closing Date there shall not have occurred any downgrading, or any notice or announcement shall have been given or made of ~~the following;~~ (i) ~~a suspension~~ any intended or ~~limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”)~~ potential downgrading 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 commercial banks,~~ any review or ~~a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities~~ possible change 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 adversedoes not indicate an improvement, in the ~~Agent’s reasonable judgment~~rating accorded any securities of or guaranteed by the Company or any Subsidiary by any "nationally recognized statistical rating organization", ~~to make it impracticable or inadvisable to proceed with~~ as that term is defined in Rule 436(g)(2) under the ~~Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Securities Act. (om) At The Company shall perform such of its obligations under this Agreement as are to be performed by the terms hereof at or ~~prior to~~ before the time required for such performance and each Closing Date~~, counsel to the Agent sh~~.

Appears in 1 contract

Sources: Sales Agency Agreement (Anthracite Capital 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~~ PFS Parties herein contained are, at and as of the commencement of the 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 OCC, the Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the OCC and the Federal ~~Reserve Board not later than 5:30 p.m. on the date of this Agreement~~Reserve, ~~or with the Agent’s consent at a later time and date; and~~ respectively, 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, to the knowledge of the ~~Primary~~ 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 ~~Commission~~OCC, the Federal ~~Reserve Board~~ Reserve, the Commission, or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale, or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~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▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum receive a letter from ~~▇▇▇▇▇ ▇~~W▇▇▇▇▇ LLP ~~relating~~ dated the Closing Date, addressed to the ~~Offering~~Agent, ~~including Agent’s participation therein~~confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 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. (f) At the Closing Date, counsel to the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~PFS 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ PFS Parties have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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; (vi) no order suspending~~ the ~~Conversion~~Federal Reserve, the ~~Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the OCC or the Federal Reserve ~~Board~~ 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 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 and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ OCC approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Chicago evidencing ~~the good standing of the Bank;~~ Peru Federal’s membership therein, (v) a certificate from the FDIC evidencing ~~the Bank~~Peru Federal’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing Date, none of the PFS 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 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 ~~Offering~~ 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 ~~delivery of~~ Agent shall be deemed a representation and warranty by such PFS Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ PC relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to PFS Bancorp with a copy thereof addressed to Agent or upon which L▇▇▇ ▇▇▇▇▇▇, 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. (p) At the Closing Date, ~~counsel to~~ the ~~Agent sh~~Shares shall have been approved for quotation on the OTCQB Market.

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, to the condition that all representations and warranties of the ~~Primary~~ ▇▇▇▇▇▇▇▇ Parties herein are, at and as of the commencement of the 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 ~~Conversion~~ Massachusetts Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ FRB, the Division or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the ~~Federal Reserve Board~~ FRB and the Division not later than 5:30 ~~p.m.~~ p.m., eastern time, 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, 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 ~~Federal Reserve Board~~ FRB, the 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 ▇▇▇▇~~▇ ▇▇▇~~▇▇▇ ~~LLP~~Procter, special counsel for the ~~Primary Parties, which shall also state that ▇▇~~▇▇▇▇▇▇▇▇ ~~▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~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 ▇▇▇▇ ▇▇▇▇▇▇, PC (“▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP~~”), special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A Prior to the mailing of the Prospectus, a blue sky memorandum from ▇▇▇▇~~▇ ▇▇▇~~▇▇▇ ~~LLP~~ Procter relating to the Offering, 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~~ Procter 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 ▇▇▇▇▇▇▇▇ Parties independently, or of the ~~Primary~~ ▇▇▇▇▇▇▇▇ Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ ▇▇▇▇▇▇▇▇ Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ FRB, the Division, or any other ~~federal or state~~ regulatory authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ ▇▇▇▇▇▇▇▇ Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 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 ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ ▇▇▇▇▇▇▇▇ Parties shall have received from ~~any Governmental Entity~~ 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 ~~in all material respects~~ (which direction, if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the ▇▇▇▇▇▇▇▇ Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 Offering▇▇▇▇▇▇▇▇ 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 ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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~~ MHC as of December 31, 2015 and 2014~~, June 30, 2014 and June 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 ~~SEC~~ FRB and any other applicable regulator and the 1933 Act; (ii) stating ~~that~~ 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 MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors or Board of Trustees, as applicable, of each of the ▇▇▇▇▇▇▇▇ Parties and consultations with officers of the 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 and the Division 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 ~~recent developments~~ latest unaudited interim consolidated financial ~~information~~ statements 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-Tier Holding Company~~MHC, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (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 Holding Company and (B) during the period from~~ MHC at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~MHC, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~MHC, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~MHC, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii) of subsection (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing ~~Date~~ Date. (k) 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: (i) confirming that ▇▇▇▇▇▇ 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 First Eastern Bankshares Corporation as of 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 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 ~~review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information)~~ reading of the ~~unaudited interim~~ latest available consolidated financial statements of ~~the Mid-Tier Holding Company~~ First Eastern Bankshares Corporation prepared by ~~the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived~~First Eastern Bankshares Corporation, a reading of the minutes of the meetings of the Boards of Directors ~~and committees~~ or Board of Trustees, as applicable, of each of the ~~Primary~~ ▇▇▇▇▇▇▇▇ Parties and consultations with officers of ~~the Mid-Tier Holding Company~~ First Eastern Bankshares Corporation responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) ~~such~~ the audited consolidated financial statements and any 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,~~ FRB and the Division 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 First Eastern Bankshares Corporation, other than normal deposit fluctuations for 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 First Eastern Bankshares Corporation at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; 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 (i), they have compared with the general accounting records of First Eastern Bankshares Corporation, which are subject to the internal controls of First Eastern Bankshares Corporation, the accounting system and other data prepared by First Eastern Bankshares Corporation, 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). (kl) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by ▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (ii) of subsection (i) 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. (m) 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 the Massachusetts 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~~209 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. (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. (mn) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shth

Appears in 1 contract

Sources: Agency Agreement (Randolph 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on the date of this Agreement~~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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 opinion~~receive a letter from BKD, LLP dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~CF 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ CF Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 ~~initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ 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 ▇▇▇▇▇▇ & 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 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~~ CF Parties ~~considered~~ independently, or the CF Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Cincinnati evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing date, none of the CF 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). (n) All such opinions, certificates, letters and documents will be in compliance with the ~~Offering~~ 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 CF Party and delivered to the Agent or to counsel for the ~~delivery of~~ Agent shall be deemed a representation and warranty by such CF Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the ~~Closing Date~~mailing of the Prospectus, ~~counsel~~ to CBI 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 ~~Agent sh~~necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.

Appears in 1 contract

Sources: Agency Agreement (Cincinnati 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 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 Conversion ~~Regulations (except to~~ Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board 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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ LLP,~~ LLP special counsel for the ~~Agent,~~ Company and the Bank in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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 Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~respective dates as of which information is given in~~ Form AC, the Registration Statement, the Prospectus and the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; Package. (iii) The Bank is a validly existing federally-chartered savings bank in mutual form and immediately following the ~~representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as~~ completion of the ~~Closing Date; (iv) the Primary Parties have complied~~ Conversion will be a validly-existing federally-chartered savings bank in ~~all material respects with all material agreements and satisfied all conditions on their part~~ stock form and, in both instances duly authorized to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 not have been any Material Adverse Effect that~~ and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is in required, whether by reason of the ~~Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable~~ ownership or ~~inadvisable to proceed with the Offering~~ leasing of property or the ~~delivery~~ conduct of business, except where the ~~Shares on the terms and in the manner contemplated in the Prospectus. (h) Prior~~ failure 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has so qualify would not ~~complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to~~ have a Material Adverse 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; ~~(iii) none~~ the activities of the ~~Primary Parties shall have~~ 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 case of the Bank; all of the issued and outstanding capital stock of each Subsidiary has been ~~in default (nor shall an event have occurred which~~duly authorized and validly issued, ~~with notice or lapse of time or both~~is fully paid and non-assessable and is owned by the Bank, ~~would constitute a default) under any provision~~ free and clear of any ~~agreement~~ security interest, mortgage, pledge, lien, encumbrance or ~~instrument relating~~ legal or equitable claim; and there are no warrants, options or rights of any kind to acquire shares of capital stock of any ~~material outstanding indebtedness;~~ Subsidiary. (ivvi) ~~no action, suit or proceeding, at law or~~ The Foundation has been duly organized and is validly existing as a non-stock corporation in ~~equity or before or by any federal or state commission, board or other administrative agency, not disclosed~~ good standing under the laws of the State of Delaware with corporate power and authority to conduct its business as described in the Prospectus~~, shall be pending or,~~ ; to the knowledge of Company and the ~~Primary Parties~~Agent, ~~threatened against any of~~ all approvals required to establish the ~~Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected~~ Foundation and to ~~have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ contribute the ~~purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall~~ Foundation Shares thereto 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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, ; except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; 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 to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the ~~accounting system~~ Agent and ~~other data prepared~~ 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 ~~Mid-Tier Holding Company, directly from such accounting records,~~ Company to the ~~extent specified~~ Foundation; the Foundation Shares to be issued to the Foundation in accordance with the 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 Foundation Shares, good title to the Foundation Shares will be transferred from the Company to the Foundation, subject to such ~~letter~~claims as may be asserted against the Foundation by third-party claimants. (vii) The authorized equity capital of the Company 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, ~~such amounts and/or percentages~~ the authorized, issued and outstanding Common Shares of the Company will be within the 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) no shares of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards capital stock 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. (k) 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 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 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 have been issued prior to the Closing Date; at the time of the Offering, the ~~Agent shall receive: (i) a copy~~ 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 pursuant to the Plan against payment of the ~~letters~~ 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 ~~Federal Reserve Board~~ Company and ~~any other applicable regulator approving~~ shares issued and contributed to the ~~Conversion Application and~~ Foundation by the ~~Holding~~ Company ~~Application and authorizing~~ to the ~~use of~~ extent payment therefor in cash has not been received by the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent except to the ~~date hereof~~extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, ~~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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 issuance of the Shares on 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 ~~the manner contemplated in the Registration Statement and the Prospectus. (o) At or prior~~ all material respects to the ~~Closing Date, counsel to the Agent sh~~description thereof contained in the

Appears in 1 contract

Sources: Agency Agreement (Athens Bancshares 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 Parties~~ MHC, the Company and the Bank, herein are, at and as of the commencement of the 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 ~~Conversion Regulations (except to~~ Reorganization Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board 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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion~~ MHC-1/MHC-2 Application and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPP.C., special counsel for the ~~Agent~~MHC, the Company and the Bank in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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 use~~Closing, 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 ~~respective dates~~ Closing, 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 federally-chartered savings bank in mutual form and immediately following the completion of ~~which information~~ the Reorganization will be a validly-existing federally-chartered savings bank in stock form and is ~~given~~ authorized 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 Bank as described in the General Disclosure Package and the Prospectus are permitted by rules, regulations and policies of the OTS. All of the outstanding capital stock of the Bank, 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 other restrictions. (iv) The Bank is a member of the FHLB-Atlanta. 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 ~~event has occurred that should have been~~ 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 ~~an amendment or supplement to~~ the General Disclosure Package and the Prospectus ~~that 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, business or prospects~~ caption “Capitalization,” and no Common Shares of capital stock of the ~~Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8~~ Company have been ~~satisfied; (iii) 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; 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 (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 General Disclosure Package and 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 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 ~~Primary Parties~~ 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 has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s Actual Knowledge, threatened by the Commission. (xiii) At the time the MHC-1/MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the MHC-1/MHC-2 Application, including the 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 (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. (xv) The terms and provisions of the Shares of common stock 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 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 are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein. (xvii) None of the MHC, the Company, the Charitable Foundation or the Bank are required to be registered as an investment company under the Investment Company Act of 1940. (xviii) To such counsel’s Actual Knowledge, none of the MHC, the Company or 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. (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 ~~material agreements~~ applicable federal law, rules, regulations, decisions and ~~satisfied all conditions on their part~~ orders including, but not limited to, the Reorganization Regulations; to ~~be performed or satisfied at or prior to the Closing Date~~such counsel’s Actual Knowledge, ~~including the conditions contained in this Section 8; (v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan, the MHC-1/MHC-2 Application, the Holding Company Application or the Prospectus. (gxxi) ~~None~~ 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 ~~the Primary Parties shall have sustained, since the date of the latest financial statements included~~ their businesses as described in the Registration Statement, except to the ~~General Disclosure Package and Prospectus~~extent that a failure to obtain such a license, ~~any material loss or interference with its business from fire, explosion, flood~~ permit or other ~~calamity~~governmental authorization would not have a material adverse effect on the MHC, ~~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~~ Company and the ~~Prospectus~~Bank, taken as a whole, and ~~since the respective dates as of which information is given~~ all such licenses, permits and other governmental authorizations are in ~~the Registration Statement~~ full force and effect, and the ~~Prospectus~~MHC, ~~there shall not have been any Material Adverse Effect that is in~~ the ~~Agent’s reasonable judgment sufficiently material~~ Company and ~~adverse as to make it impracticable or inadvisable to proceed with~~ the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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 Bank are in all material respects complying therewith. (~~which direction~~xxii) To such counsel’s Actual Knowledge, ~~if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii)~~ 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 ~~instrument relating to~~ condition contained in any material ~~outstanding indebtedness; (iv) no action~~contract, ~~suit~~ indenture, mortgage, loan agreement, note, lease or ~~proceeding, at law or in equity or before~~ other instrument to which it is a party or by ~~any federal~~ which it or ~~state commission~~its property may be bound, ~~board~~ except for such defaults or ~~other administrative agency,~~ violations which would not ~~disclosed in~~ have a material adverse impact on the ~~Prospectus, shall be pending or, to the knowledge~~ financial condition or results of operations of the ~~Primary Parties~~MHC, ~~threatened against any of~~ the ~~Primary Parties or affecting any of their properties wherein an unfavorable decision~~Company and the Bank on a consolidated basis; to such counsel’s Actual Knowledge, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 and delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, 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 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, 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 ~~Agent: (i) confirming that BDO USA, LLP 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 States~~xxiii) ~~and stating in effect that in its opinion~~ Except as waived or otherwise approved by the ~~financial statements and related notes of~~ OTS, the ~~Mid-Tier Holding Company as of December 31~~MHC’s, ~~2014, June 30, 2014 and June 30, 2013~~ Company’s and the ~~six months ended December 31, 2014~~ Bank’s respective Charters and ~~the years ended June 30, 2014 and 2013, and covered by their opinion 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 ~~SEC~~ United States of America. (xxiv) The Charitable Foundation has been duly incorporated and is validly existing as a non-stock corporation under the ~~1933 Act; (ii) stating that (A) during the period from the date~~ laws of the ~~recent developments financial information included~~ State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~“Recent Developments” section~~ Prospectus; no additional approvals are required to contribute the Charitable Foundation Shares to the 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 ~~Prospectus to~~ HOLA as a ~~specified date not more than three business days prior to the date~~ result of the issuance of shares of Common Shares to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus~~, except~~ . Upon issuance of the Charitable Foundation Shares in accordance with the Plan and as ~~has been~~ described in the Prospectus, ~~there was any increase in long~~the 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 Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and party claimants. (Bxxv) ~~during the period from the date of the recent developments financial~~ The information ~~included~~ in the Prospectus ~~to a specified date not more than three business days prior to~~ under the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the captions “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shSupervision

Appears in 1 contract

Sources: Agency Agreement (Cullman 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~~ Seneca Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the ~~Primary~~ Seneca 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~~ Seneca Parties shall have conducted the ~~Conversion~~ Reorganization in all material respects in accordance with the Plan, the ~~Conversion~~ MHC Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board and any other applicable regulator~~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 ~~Federal Reserve Board~~ FRB, the OCC or the FDIC or any other ~~applicable regulator~~regulatory body to the reasonable satisfaction of Agent and its counsel. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ SEC, the ~~Conversion Application~~ MHC Notice and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB, the OCC Applications shall have been approved by the OCC and the FDIC Application shall have been approved by the 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, to the knowledge of the ~~Primary~~ Seneca 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~~ Seneca Parties’ ' knowledge, threatened by the ~~Commission~~SEC, the ~~Federal Reserve Board~~ FRB, the OCC or the FDIC or any other ~~federal~~ 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 ~~authority~~court 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~~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 Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, special counsel for the Seneca 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, ~~in form~~ with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and ~~substance~~ directors of the Seneca Parties delivered pursuant hereto or as such counsel shall reasonably ~~acceptable to~~ request and the ~~Agent. (e) A blue sky memorandum from ▇~~opinion of ▇▇▇▇ ▇▇▇▇▇▇, PC delivered pursuant to subsection (c) above. (e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ~~LLP~~ ▇▇▇▇▇▇, PC relating to the Offering, including Agent’s '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~~ ▇, 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~~ Seneca Parties in form and substance reasonably satisfactory to the Agent’s '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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ Seneca Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Seneca Parties independently, or of the ~~Primary~~ Seneca Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Seneca Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions ~~contained~~ 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; (vvi) 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 Parties~~their knowledge, threatened by the ~~Commission~~ SEC or any state or federal authority; (vixii) no order suspending the ~~Conversion~~Reorganization, the 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~~their knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the FRB, the OCC, the FDIC or any ~~other~~ state or federal ~~or state~~ authority; and (~~vii~~xiii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ FRB approving the ~~Conversion~~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 their knowledge, threatened by the FRB, the OCC or the FDIC 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~~ Seneca 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 ~~Prospectus~~General Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s 's reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (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~~ Seneca Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ 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 Seneca Party since the latest dates as of which the financial condition of the Seneca Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the ~~Primary~~ Seneca Parties shall have received from ~~any Governmental Entity~~ the OCC or the FRB 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~~direction (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Seneca Parties taken as a ~~Material Adverse Effect~~whole; (~~iii~~iv) none of the ~~Primary~~ Seneca 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; (ivv) 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~~ Seneca Parties, threatened against the any of the ~~Primary~~ Seneca Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to~~ have a Material Adverse Effect; (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 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~~ Seneca Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014~~2016 and December 31, ~~June 30~~2015, ~~2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~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 SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Seneca Parties 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) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the ~~1933 Act~~United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (~~ii) stating that (A~~B) during the period from the date of the ~~recent developments~~ latest financial ~~information~~ statements 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 or short-term debt of the ~~Mid-Tier Holding Company~~Bank; or (C), ~~other than normal deposit fluctuations for the Mid-Tier Holding Company~~except as set forth in said letter, ~~or decreases~~ there was any decrease in the total assets, total loans, the allowance for loan losses, total ~~deposits~~ deposits, or total ~~equity~~ capital accounts of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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,~~ ; or (D) there ~~were~~ was any ~~decreases, as compared with the corresponding period in the preceding fiscal year,~~ decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income ~~before income tax expense~~ or net income or increase in non-interest expense or the provision for loan losses of the ~~Mid-Tier Holding Company~~Bank, 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shth

Appears in 1 contract

Sources: Agency Agreement (Seneca 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~~ Company, the MHC and the Bank herein are, at and as of the commencement of the 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, the MHC and the Bank shall have conducted the ~~Conversion~~ Offering in all material respects in accordance with the Plan, the ~~Conversion~~ OTS Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Offering imposed upon them by the ~~Federal Reserve Board or~~ SEC, the OTS, the Georgia Department of Banking and Finance and any ~~other applicable regulator.~~state securities agency. 18 NEXT PAGE (b) The Registration Statement shall have been declared effective by the ~~Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board~~ SEC 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, to the knowledge of the Primary Parties,~~ 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~~ Offering 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 Federal Reserve Board~~ SEC or any other ~~federal or state~~ governmental 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~~Silver, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, L.L.P., special counsel for the Company, the MHC and the Bank, in form and substance ~~as attached hereto as Exhibit C.~~to the effect that: (di) The Company has been duly organized and is a validly existing federally chartered stock savings and loan holding company. (ii) The Company has full 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; and the Company is 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 Company and Bank. (iii) The Bank has been duly organized and is a validly existing Georgia 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; the Bank is not prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to the Bank's capital stock or from repaying to the Company any amounts which may form time to time become due under any loans or advances to the Bank from the Company, or form transferring any of the Bank's property or assets to the Company. All of the capital stock of the Bank outstanding upon completion of the Offering 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. 19 NEXT PAGE (iv) The MHC has been duly organized and is a validly existing federally chartered mutual holding company duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation to transact business 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 of the Company, the MHC and the Bank; and the activities of the MHC, as described in the Registration Statement and the Prospectus, are permitted to a federally chartered mutual holding company under the rules, regulations, policies and practices of the OTS and all other federal banking or non-federal governmental agencies and regulatory authorities having jurisdiction thereover. (v) The Bank is a member in good standing of the FHLB. 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. (vi) Immediately following the consummation of the Offering, the authorized, issued and outstanding Common Stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization"; 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 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 Plans 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 Common Stock conform in all material respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Common Stock complies with applicable laws. 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. 20 NEXT PAGE (vii) The Company, the MHC and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby 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 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 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) Each of the Company and the MHC is registered as a savings and loan holding company under HOLA. (ix) No 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 Stock 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 (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 SEC. (xi) At the ~~Closing Date~~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 ~~Agent shall have received~~ 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 ~~favorable opinion, dated as~~ requirements of the ~~Closing Date~~ 1933 Act and ~~addressed~~ 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 ~~Agent~~ requirements of the 1933 Act, the 1933 Act Regulations, the OTS Regulations and ~~for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent~~federal law. (exii) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ There are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Offering~~Registration Statement and Prospectus, ~~including Agent’s participation~~ other than those disclosed therein. 21 NEXT PAGE (xiii) There are no material contracts, ~~shall have~~ indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in 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 Registration Statement or the Prospectus. The description in 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. (xiv) The OTS has duly approved the Plan; such approval remains in full force and effect and no action is pending, or the best of such counsel's knowledge, threatened, respecting the Plan. The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the OTS Regulations; no order has been ~~furnished prior~~ issued by the SEC, the OTS, the Georgia Department of Banking and Finance or any other governmental authority to suspend the ~~mailing~~ 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 ~~Holding Company with a copy thereof addressed~~ SEC, the OTS, the Georgia Department of Banking and Finance or any other governmental authority and, to ~~Agent~~ such counsel's Actual Knowledge, no person has sought to obtain regulatory or ~~upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state~~ judicial review of the ~~Agent may rely. The blue sky memorandum will relate to~~ final action of the ~~necessity of obtaining or confirming exemptions, qualifications~~ OTS approving the Plan or the ~~registration of the Shares under applicable state securities law~~Prospectus. (fxv) At The Company and the ~~Closing Date~~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 ~~Agent shall receive a certificate~~ MHC and the Bank are in all material respects complying therewith. (xvi) None of the ~~Chief Executive Officer~~ Company, the MHC or the Bank is in violation of its Certificate of Incorporation and Bylaws or 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 a material adverse impact on the financial condition or results of operations of the Company, the MHC and the ~~Chief Financial Officer~~ Bank on a consolidated basis; the execution and delivery of ~~each~~ this Agreement, the incurrence of the ~~Primary Parties~~ 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 ~~form and substance reasonably satisfactory~~ 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), (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 Bank or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the ~~Agent’s Counsel~~securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and the Nasdaq Stock Market need be rendered) or order or court order, ~~dated as~~ writ, injunction or decree. (xvii) The Company's and the MHC's respective Certificate of ~~such Closing Date~~Incorporation, Charter and Bylaws comply in all material respects with federal law, and the Bank's Certificate of Incorporation, Charter and Bylaws comply in all material respects with Georgia law. 22 NEXT PAGE (xviii) None of the Company, the MHC or the Bank is in violation of any directive from the OTS, the Georgia Department of Banking and Finance or the FDIC to make any material change in the method of conducting its respective business. (xix) The information in the Prospectus under the captions "Our Policy Regarding Dividends," "How We Are Regulated," "Taxation," "The Stock Offering," "Restrictions on Acquisition of Heritage Financial Group and HeritageBank of the South" and "Description of Capital Stock of Heritage Financial Group" to the ~~effect that: (i) they have carefully examined~~ 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 Offering process in the Prospectus under the caption "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 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 Stock Offering - Tax Effects of the Offering" has been reviewed by such counsel and fairly describes the opinions rendered by them to the Company, the MHC and the Bank with respect to such matters. In addition, such counsel shall state that during the preparation of the Offering 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 Offering 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 opinion~~the Offering Application, at the ~~time~~ Registration Statement and the Prospectus ~~became authorized~~ and do not assume any responsibility for ~~final use~~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 Company and the Bank), nothing has come to their attention that would lead them to believe that the Offering Application, the Registration Statement and the Prospectus ~~did not contain~~ 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Heritage Financial Group)

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 and the Bank herein are, at and as of the commencement of the 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, 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board~~ OTS, the SEC or any other ~~applicable regulator~~authority government. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~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~~OTS; and at the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, the General Disclosure Package shall have been issued under the 1933 Act or proceedings ~~therefore~~ therefor initiated or, to the ~~knowledge of~~ Company’s, or the ~~Primary Parties~~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, or the Bank’s knowledge, threatened by the ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 under which they were made, not misleading;~~ State of Maryland. (ii) ~~since~~ Each of the Company and the Bank 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 and the Prospectus. (iii) The Bank is a validly existing federally-chartered stock savings association in stock form duly authorized to conduct its business and own its property as described in the Registration Statement, the General Disclosure Package and the Prospectus. When issued 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, 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-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 ~~event has occurred that should have been~~ proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in ~~an amendment or supplement~~ the Statutory Prospectus and the Prospectus under the captions “The Conversion; Plan of Distribution - Effects of Conversion on Depositors, Borrowers and Members - Effect on Liquidation Rights” to the ~~Prospectus~~ extent that such information constitutes matters of law and legal conclusions, has ~~not~~ been ~~so set forth, including specifically, but without limitation, any~~ reviewed by such counsel and is accurately described in all material ~~adverse change in~~ respects. (v) Immediately following the ~~condition, financial or otherwise, or in the earnings, capital, properties, business or prospects~~ consummation of the ~~Primary Parties independently~~Conversion, or the issued and outstanding Common Stock of the ~~Primary Parties considered as one enterprise, whether or not arising in~~ Company will be within the ~~ordinary course of business and the conditions~~ range set forth in ~~this Section 8 have~~ the Statutory Prospectus and the Prospectus under the caption “Capitalization,” and except for shares issued upon incorporation of the Company, no Common Stock has been ~~satisfied; (iii) 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 General Disclosure Package 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 Company’s Articles of Organization or as otherwise may be required pursuant to OTS regulations, and the terms and provisions of the Common Stock conform in all material respects to the description thereof contained in the Statutory Prospectus and the Prospectus. The form of certificate used to evidence the Common Stock complies with the requirements of the 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 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 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 (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 ~~Primary Parties~~ 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 Holding Company Application have been approved by OTS and the General Disclosure Package, Prospectus and Members’ Proxy Statement have been declared effective and cleared by the OTS, and to the best of such counsel’s Actual Knowledge, no action has been taken, is pending, or is threatened to revoke any such authorization or approval. (viii) Pursuant to the Conversion Regulations, the Plan has been approved by the Bank’s members and duly adopted by the required vote of the directors of the Company and 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 any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Stock 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 be rendered). (x) The Registration Statement has been declared effective under the 1933 Act and to such counsel’s Actual Knowledge, no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or threatened by the SEC. (xi) At the time the Conversion Application, including the General Disclosure Package, Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the Conversion Application, including the General Disclosure Package, Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Conversion 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), 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 Statutory Prospectus and 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, it being understood, however, that in passing upon the compliance as to form of the Registration Statement, the Statutory Prospectus and the Prospectus, we have assumed that the statements made therein are correct and complete. (xiii) 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, the General Disclosure Package and Prospectus, other than those disclosed therein. (xiv) 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, 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 Conversion Application, the Registration Statement, the General Disclosure Package or the Prospectus. The description in the Conversion Application, 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. (xv) The Plan complies in all material respects with all ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v) no stop order suspending the effectiveness of the Registration Statement has been initiated or~~and, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) 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 ~~Federal Reserve Board or any other applicable regulator~~ OTS 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hxvi) ~~Prior to~~ The execution 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, dated as~~ incurrence of the ~~date hereof~~ obligations herein set forth and ~~addressed~~ 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 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 that is filed as an exhibit to the ~~Agent:~~ Registration Statement (~~i) confirming that BDO USA, LLP is a firm of independent registered public accountants within~~ other than the ~~applicable rules~~ establishment of the ~~Public Company Accounting Oversight Board~~ liquidation account), (~~United States~~b) ~~and stating~~ result in ~~effect that in its opinion the financial statements and related notes~~ any violation of the ~~Mid-Tier Holding~~ provisions of the Articles of Organization or Bylaws of the Company as or the Charter or the Bylaws of ~~December 31~~Company or the Bank or, ~~2014~~(c) result in any violation of any applicable federal or state law, ~~June 30~~act, ~~2014~~ regulation (except that no opinion with respect to the securities and ~~June 30~~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, ~~2013~~ writ, injunction or decree. (xvii) The information in the Statutory Prospectus and the ~~six months ended December 31~~Prospectus under the captions “Our Policy Regarding Dividends,” “Supervision and Regulation,” “Taxation,” “The Conversion; Plan of Distribution,” “Restrictions on Acquisition of Beacon Federal Bancorp, ~~2014~~ Inc.” and “Description of Capital Stock” to the ~~years ended June 30~~extent that such information constitutes matters of law, ~~2014~~ summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and ~~2013, and covered by their opinion included in the Prospectus, comply as to form~~ is correct in all material ~~respects with the applicable accounting requirements and related published rules and regulations~~ respects. The description of the ~~SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included~~ Conversion process 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-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Statutory Prospectus and the ~~performance~~ Prospectus under the caption “The Conversion; Plan of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, Distribution” to the extent ~~specified in~~ that such ~~letter~~information constitutes matters of law, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) summaries of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 legal 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 Actdocuments or proceedings, ~~applicable accounting requirements of the Commission~~or legal conclusions, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus. (k) 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 the Conversion Regulations, (ii) stating in effect that the Appraisal prepared has been reviewed by such ~~firm complies~~ counsel and fairly describes such process in all material ~~respects with~~ respects. The descriptions in the ~~applicable requirements~~ Statutory Prospectus and the Prospectus of statutes or regulations are accurate summaries and fairly present the ~~Conversion Regulations,~~ information required to be shown. The information under the caption “The Conversion; Plan of Distribution – Material Income Tax Consequences” has been reviewed by such counsel and ~~(iii) further stating that its opinion of~~ fairly describes 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 opinions rendered 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~~ them 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) Bank with respect to such ~~other documents and certificates as the Agent may reasonably request~~matters. (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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Beacon Federal Bancorp, Inc.)

Conditions to the Agent’s Obligations. The obligations of the Agent ~~hereunder~~hereunder and the occurrence of the Closing, ~~as to~~ the ~~Shares to be delivered at~~ Conversion 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 ~~Offering~~ Offerings and at and as of the Closing ~~Date~~Time, true and ~~correct in all material respects~~correct, 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 Conversion and the ~~Closing Date, the Primary Parties~~ Proxy Statement shall have ~~conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise~~ been approved by the ~~Federal Reserve Board~~ Division and ~~any other applicable regulator)~~the 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 Federal Reserve Board or any other applicable regulator. (b) as applicable. The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the ~~Conversion Application and the Holding Company~~ BHC Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ FRB, the ~~date of this Agreement~~Merger Application shall have been approved by the FDIC, ~~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 knowledge~~ 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 shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ best knowledge, threatened by the Division, the FDIC, the FRB, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal or state authority~~governmental body. (cb) At the Closing ~~Date~~Time, ~~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~~Time, of ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C. in form and substance satisfactory to counsel for Agent, as ~~attached hereto~~ set forth in Exhibit C. In rendering such opinion, such counsel may rely (A) as ~~Exhibit C.~~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 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 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. (dii) ~~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,~~ The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent,~~ P.C. in form and substance ~~as reasonably acceptable~~ to the ~~Agent. (e) A blue sky memorandum from~~ effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP relating to the Offering~~& ▇▇▇▇▇▇, ~~including Agent’s participation therein, shall have been furnished prior to the mailing~~ P.C. participated in conferences with certain officers of and other representatives of the ~~Prospectus~~Primary Parties, counsel to Agent, representatives of the ~~Holding Company with a copy thereof addressed~~ 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 ~~Agent or upon which~~ be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(i)) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP shall~~ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that counsel need express no comment or opinion with respect to 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). (iii) The favorable opinion, dated as of the Closing Time, of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, with respect to such matters as the Agent may ~~rely~~reasonably require. 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, (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; and (C) the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (iv) The letter of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for Agent, in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, 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)(iii)) Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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 Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP that caused Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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 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). (v) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Primary Parties and Agent relating to the Offerings, 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~~ Common Stock under applicable state securities law. (c) Concurrently with the execution of this Agreement, Agent shall receive a letter from KPMG LLP, dated the date hereof and addressed to Agent, such letter (i) confirming that KPMG 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 and the PCAOB 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 KPMG LLP’s opinion the financial statements of MHC and 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 Conversion Regulations and GAAP 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 MHC and the Bank, a reading of the minutes of the meetings of the Board of Directors and Audit Committee of the Primary Parties 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 and financial information included in the section titled “Recent Developments” are not in conformity with GAAP 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, classified loans, special mention loans, borrowings (defined as advances from the FHLB of Boston, 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 MHC and the Bank, which are subject to the internal controls of the accounting system of the MHC and the Bank, respectively, and other data prepared by the MHC 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 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 KPMG 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 ~~Date~~Time, 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~~Parties, dated ~~as of such~~ the Closing ~~Date~~Time, to the effect that: (i) they have ~~carefully~~ examined the Prospectus ~~and, in their opinion,~~ and the Registration Statement and at the time the Prospectus became authorized for final use, the Prospectus and the Registration Statement 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) there has not been, 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, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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~~Time; (iv) each of the Primary Parties ~~have~~ has complied in all material respects with all material agreements and 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 810; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offerings, the Conversion, the acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the effectiveness of the 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; (vi) no order suspending the Conversion~~Division, the ~~Offering or~~ FRB, the ~~use of~~ FDIC, the ~~Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the ~~Federal Reserve Board~~ Division, the FRB or ~~any other applicable regulator~~ the FDIC in approving the ~~Conversion~~Plan or to enjoin the Conversion or the Offerings. (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 Conversion Regulations, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect. (h) Prior to and at the Closing Time, 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 ~~Offering~~ Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hi) Prior to and at the Closing ~~Date~~Time: (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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shlates

Appears in 1 contract

Sources: Agency Agreement (Campello 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 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 ~~Conversion~~ Pennsylvania Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the Federal ~~Reserve Board~~ Reserve, the FDIC, the PA Department and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the PA Department, the FDIC and the Federal ~~Reserve Board not later than 5:30 p.m. on the date of this Agreement~~Reserve, ~~or with the Agent’s consent at a later time and date; and~~ as 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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇~~L▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 and internal 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 examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 100) of the latest available unaudited consolidated 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 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 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 opinion~~receive a letter from Wolf & Company, P.C. dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~SSB 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ SSB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal ~~Reserve Board~~ Reserve, the FDIC or ~~any other applicable regulator~~ the PA Department in approving the ~~Conversion~~Applications 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 Regulations, 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 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~~ SSB Parties ~~considered~~ independently, or the SSB Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ Pennsylvania Application and a copy of the letter or order from the ~~Federal Reserve Board and any other applicable regulator~~ PA Department approving the ~~Conversion Application and the Holding Company Application and authorizing the use of the Prospectus;~~ Pennsylvania Application, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence~~ Holding Company Application, (iv) a copy of the ~~MHC and~~ letters or orders from the ~~Mid-Tier Holding Company;~~ FDIC approving the FDIC Applications, (ivv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Pittsburgh evidencing the ~~good standing of the~~ Bank; ’s membership therein, (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts~~; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein;~~ , and (vii) ~~a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering or the delivery~~ sale of the ~~Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Shares. (om) ~~At or prior~~ Prior to and at the Closing Date, ~~counsel~~ none of the SSB Parties will have received from the Federal Reserve, the FDIC, or the 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). (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 shand 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.

Appears in 1 contract

Sources: Agency Agreement (SSB 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~~ NSTS Parties herein contained are, at and as of the commencement of the 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~~ NSTS 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~~ NSTS 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on the date of this Agreement~~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, to the knowledge of the ~~Primary~~ NSTS 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 NSTS Parties~~’ knowledge~~, threatened by the Federal Reserve, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares and the Foundation Shares shall have been registered for offering and sale or ~~state authority~~contribution, 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 NSTS 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 benefit~~Date, of ▇▇▇▇~~▇ ▇▇▇▇~~▇▇ ~~LLP~~Price P.C., ~~special~~ in form and substance satisfactory to the Agent and counsel for the ~~Primary~~ 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 NSTS 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 NSTS 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 ~~also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇~~receive a letter from ▇▇▇▇▇▇ & ▇▇▇▇▇~~▇▇▇ 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~~ PLLC dated 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~~Agent, ~~of ▇▇▇▇▇▇▇▇▇▇ ▇▇~~such letter (i) confirming that ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC 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, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from~~ ▇▇▇▇▇ ▇▇▇▇▇▇ ~~LLP relating~~ PLLC, the financial statements of North Shore Trust and Savings included in the Prospectus comply as to form in all material respects with the ~~Offering~~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, ~~including Agent’s participation therein~~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 NSTS Parties, ~~shall have been furnished~~ a reading of the minutes of the meetings of the Board of Directors of North Shore Trust and Savings and committees thereof and consultations with officers of the NSTS 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 ~~mailing~~ 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 North Shore Trust and 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 ~~Holding Company~~ 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 NSTS Parties, which are subject to the internal controls of the accounting system of the NSTS Parties and other data prepared by the NSTS 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 receive a ~~copy thereof addressed to Agent or upon which ▇▇▇▇▇~~ letter from ▇▇▇▇▇▇ ~~LLP shall state~~ & ▇▇▇▇▇, PLLC dated the ~~Agent may rely. The blue sky memorandum will relate~~ Closing Date, addressed to the ~~necessity~~ Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of ~~obtaining or confirming exemptions~~this 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 law~~Closing 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 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 Counsel~~NSTS 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ NSTS Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of North Shore Trust and Savings by NSTS Bancorp, or 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; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ 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: (i) confirming that said firm is independent of the NSTS 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 NSTS Parties expressed in the Appraisal as most recently updated, remains in effect. (i) None of the ~~Primary~~ NSTS 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 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~~ NSTS Parties ~~considered~~ independently, or the NSTS Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Conversion ~~Application and~~ Application, including the ~~Holding Company Application and authorizing the use~~ establishment of the ~~Prospectus;~~ Foundation, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Chicago evidencing ~~the good standing of the Bank;~~ North Shore Trust and Savings’s membership therein, (v) a certificate from the FDIC evidencing ~~the Bank~~North Shore Trust and Savings’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing Date, none of the NSTS 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). (n) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the ~~Offering~~ 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 NSTS Party and delivered to the Agent or to counsel for the ~~delivery of~~ Agent shall be deemed a representation and warranty by such NSTS Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from ▇▇▇▇▇▇ Price P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to NSTS Bancorp with a copy thereof addressed to Agent or upon which ▇▇▇▇▇▇ Price 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. (p) At the Closing Date, ~~counsel to~~ the ~~Agent sh~~Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Markets.

Appears in 1 contract

Sources: Agency Agreement (NSTS 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 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion~~ prospectus and proxy statement contained in the MHC Notice and Application ~~and~~ shall have been approved by the OTS for mailing prior to the commencement of the Offering, the Holding Company Application shall have been ~~approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement~~approved, ~~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, to ~~the knowledge~~ 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~~ therefor initiated or, to any of the Primary Parties’ ' best knowledge, threatened by the OTS, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal or state authority~~governmental 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 benefit~~Date, of ▇▇▇▇▇ ▇▇▇▇▇~~▇ LLP~~▇▇, ~~special~~ and/or local counsel acceptable to the Agent 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 federal laws of the United States of America, 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 Primary Parties. (ii) The Bank is a duly organized and validly existing federally chartered mutual savings 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 OTS; the issuance and sale of the capital stock of the Bank 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 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 Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings bank holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Holding Company and the Bank are complying therewith in all material respects. (iv) The Bank is a member of the FHLB of Seattle and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened. (v) Upon consummation of the Reorganization, the MHC will have been duly organized and will be 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. (vi) Upon consummation of the Reorganization, (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 of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Primary Parties, ~~which shall also~~ or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan. (vii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies). (viii) The Plan has been duly adopted by the board of directors of the Bank and by the members of the Bank, in the manner required by the Conversion Regulations and the Bank's charter and bylaws. (ix) The OTS Applications have been approved by the OTS and the Prospectus and the Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such OTS 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 Reorganization. (x) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS and no action has been taken, or, to such counsel's knowledge, is pending or threatened, to revoke any such authorization or approval. (xi) 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. (xii) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption "The Reorganization -- Federal and State Tax Consequences of the Reorganization." The information in the Prospectus under the caption "The Reorganization -- Federal and State Tax Consequences of the Reorganization" has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable~~ Co. to the ~~Agent~~Primary Parties with respect to such matters. (exiii) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ The terms and provisions of the shares of Common Stock conform to the ~~Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy~~ description thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 respective dates as of which information is given contained in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been set forth~~ and the forms of certificates proposed to be used to evidence the shares of Common Stock are in ~~an amendment~~ due and proper form. (xiv) At the time the MHC Notice and Application was approved, the MHC Notice and Application (as amended or ~~supplement to~~ supplemented) including the Prospectus ~~that has not been so set forth~~contained therein, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered complied as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied to form in all material respects with ~~all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to~~ the ~~Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness~~ requirements of the ~~Registration Statement has been initiated or~~Conversion Regulations and all applicable laws, ~~to the knowledge~~ rules and regulations and decisions and orders of the ~~Primary Parties~~OTS, ~~threatened~~ except as modified or waived in writing by the ~~Commission or any state authority;~~ OTS (~~vi)~~ other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiesopinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~OTS Applications. (gxv) ~~None of~~ At the ~~Primary Parties shall have sustained, since~~ time that the ~~date of the latest financial statements included in~~ Registration Statement became effective the Registration Statement, including the ~~General Disclosure Package and Prospectus~~Prospectus contained therein (as amended or supplemented) (other than the financial statements, ~~any material loss or interference with its business from fire~~notes to financial statements, ~~explosion, flood~~ financial tables 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~~ financial and statistical data included therein 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 appraisal valuation as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the ~~applicable accounting~~ requirements of the 1933 Act and ~~related published~~ the rules and regulations promulgated thereunder. (xvi) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the ~~SEC and the 1933 Act;~~ invalidity of this Agreement or (ii) ~~stating that (A) during~~ seeking to prevent the ~~period from~~ Reorganization or the ~~date~~ offer, sale or issuance of the ~~recent developments financial~~ Shares. (xvii) The 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-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to~~ under the ~~date~~ captions "Regulation," "Taxation," "Restrictions on Acquisition of ~~the Prospectus~~Eagle", except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income "Eagle Bancorp's Charter and Bylaws," "Description of ~~the Mid-Tier Holding Company;~~ Capital Stock," "The Reorganization," 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, "The Offering" to the extent ~~specified in such letter~~that it constitutes matters of law, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) summaries of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 legal matters, ~~nothing came to their attention which caused them to believe that: (A)~~ documents or proceedings, or legal conclusions, has been reviewed by 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. (k) 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 the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies~~ accurate 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,~~ except 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~~ financial statements and other financial data included therein as 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 Datewhich such counsel need express no opinion). (m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Eagle Bancorp/Mt)

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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board~~ OTS, the SEC or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~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~~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 ~~knowledge of~~ Company’s, the ~~Primary Parties~~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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ Silver ▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, L.L.P., special counsel for the Company, 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 Georgia-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 outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and to counsel ’ s knowledge 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-Atlanta. 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. (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 the 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, 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 opinion~~extent that subscription rights and priorities thereto exist pursuant to the Plan), ~~dated as~~ and the terms and provisions of the ~~Closing Date and addressed~~ Shares conform in all material respects to the ~~Agent~~ description thereof contained in the Prospectus. The form of certificate used to evidence the Shares complies with the requirements of the 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, the Mid-Tier Holding Company and ~~for~~ 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 ~~benefit~~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 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, or is pending, or, to such counsel’s knowledge, threatened to revoke any such authorization or approval. (viii) The Georgia Application has been approved by the Georgia Department of Banking and Finance, no action has been taken, or is pending, or, to such counsel’s knowledge, threatened to revoke such approval. (ix) 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. (x) Subject to the satisfaction of the conditions to the OTS’ approval of the Conversion and any additional requirements imposed by the Georgia Department of Banking and Finance, 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, 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). (xi) 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 ▇▇▇▇ ▇▇▇~~▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent~~. (exii) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the time the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein (other than compliance with applicable technical standards regarding electronic format or with regard to the ~~Offering~~financial statements, ~~including Agent’s participation~~ the notes thereto, and other tabular, financial, statistical and appraisal data included therein, ~~shall have been furnished prior~~ as to which no opinion need be rendered) , complied as to 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 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 compliance with applicable technical standards regarding electronic format or with regard to the ~~mailing~~ 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 ~~Prospectus~~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 Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 requirements of the ~~Shares under~~ 1933 Act, the 1933 Act Regulations, the Conversion Regulations and applicable ~~state securities~~ federal law. (fxiv) At 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 ~~Closing Date~~Company, the ~~Agent shall receive~~ 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 ~~certificate~~ material adverse effect on the ability 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 useCompany, the ~~Prospectus did not contain any untrue statement of a material fact~~ MHC, the Mid-Tier Holding Company or ~~omit~~ the Bank to ~~state a material fact necessary in order~~ consummate the transactions contemplated by this Agreement or which is required to ~~make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given~~ be disclosed in the Registration ~~Statement~~Statement or the Prospectus and is not so disclosed. (xv) 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 ~~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~~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 knowledge, ~~no event has occurred that should have been set forth~~ none of the MHC, the Company, the Mid-Tier Holding Company or the Bank is in ~~an amendment~~ violation of a directive from the OTS, the FDIC or ~~supplement~~ the Georgia Department of Banking and Finance to ~~the Prospectus that has not been so set forth, including specifically, but without limitation,~~ make any material ~~adverse~~ change in the ~~condition, financial or otherwise, or in the earnings, capital, properties, business or prospects~~ method of ~~the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of~~ conducting its business and the ~~conditions set forth in this Section 8 have been satisfied;~~ MHC. (~~iii~~xvii) ~~the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as~~ None of the ~~Closing Date;~~ MHC, the Company, the Mid-Tier Holding Company or the Bank is required to be registered as an investment company under the Investment Company Act of 1940, as amended. (ivxviii) ~~the Primary Parties have complied~~ The Plan complies in all material respects with all ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v) no stop order suspending the effectiveness of the Registration Statement has been initiated or~~and, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hxix) ~~Prior to~~ The execution 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, dated as~~ incurrence of the ~~date hereof~~ obligations herein set forth and ~~addressed to~~ the ~~Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules~~ consummation of the ~~Public Company Accounting Oversight Board~~ transactions contemplated herein do not (~~United States) and stating~~ a), to such counsel’s knowledge, conflict with or constitute a breach of, or default under, or result in ~~effect that in its opinion~~ the ~~financial statements and related notes~~ creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company ~~as of December 31~~or the Bank pursuant to any material contract, ~~2014~~indenture, ~~June 30~~mortgage, ~~2014 and June 30~~loan agreement, ~~2013 and~~ note, lease or other instrument to which the ~~six months ended December 31~~Company, ~~2014 and~~ the ~~years ended June 30~~MHC, 2014 and 2013, and covered by their opinion 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 SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding ~~Company,~~ Company or the Bank is a party that is filed as an exhibit to the Registration Statement (other than ~~normal deposit fluctuations for~~ 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 Mid-Tier Holding Company or the Bank or, (c) result in any violation of any applicable federal or state law, act, regulation known to counsel to be applicable to these types of transactions (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. (xx) The information in the Prospectus under the captions “Our Policy Regarding Dividends” “How We Are Regulated,” “Taxation,” “The Conversion and Offering,” “Restrictions on Acquisition of Heritage Financial Group” and “Description of Capital Stock of Heritage Financial Group 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 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, ~~or decreases in~~ the ~~total assets~~MHC, ~~total loans, the allowance for loan losses, total deposits or total equity of~~ the Mid-Tier Holding Company and ~~(B) during~~ the ~~period from the date~~ 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 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 the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the ~~accounting system and other data prepared by the Mid-Tier Holding Company~~MHC, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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~~ Bank and certificates of public officials. Such counsel’s opinion need refer only to matters of federal law, the laws of the State of Georgia and the State of Maryland and, with respect to enforceability of this Agreement, New York law. 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 ~~the Prospectus was derived~~each case, a ~~reading~~ director or executive officer of either of the ~~minutes of~~ Company, the ~~meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of~~ MHC, 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 or 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. (k) At the Closing Date, the Holding Company Bank 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 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 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) have 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Companypresent laws be changed by legislative or regulatory action, judicial decision or otherwise; and ~~(viii)~~ such ~~other documents and certificates as the Agent may reasonably request. (n) Subsequent to the date hereof~~counsel need express no view, 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shopin

Appears in 1 contract

Sources: Agency Agreement (Heritage Financial Group 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 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~Regulations, 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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇, ▇▇▇▇~~▇ ▇~~, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~LLP~~L.L.P., special counsel for the ~~Agent~~Company and the Bank, in form and substance ~~as reasonably acceptable~~ to the ~~Agent~~effect that: (i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana. (eii) ~~A blue sky memorandum~~ 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-Liquidation Rights of Certain Depositors," 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 "Our 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ 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 ~~Offering~~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 ~~Agent’s participation therein, shall have been furnished prior~~ 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 ~~mailing~~ 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 ~~Prospectus, to~~ 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 in accordance with ~~a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state~~ the ~~Agent may rely. The blue sky memorandum will relate~~ Conversion Regulations and the applicable requirements of the Bank's charter and bylaws. (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 exemptions~~other 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 Date~~all 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 respective dates as of which information is given description thereof contained in the Registration ~~Statement~~Statement 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, no event has occurred that should have been set forth~~ Prospectus of such documents and exhibits is accurate in ~~an amendment or supplement~~ all material respects and fairly presents the information required to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown. (~~iii~~xvi) ~~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; (iv) the Primary Parties have complied~~ The Plan complies in all material respects with all ~~material agreements~~ applicable federal and ~~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~~such counsel's Actual Knowledge, ~~including the conditions contained in this Section 8; (v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering 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 Agent~~any 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 Parties considered as one enterprise~~Company and the Bank on a consolidated basis; to such counsel's Actual Knowledge, ~~from~~ the execution and as delivery of this Agreement, the incurrence of the ~~latest date 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 ~~Prospectus~~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 ~~transactions referred to or contemplated therein; (ii) none~~ the establishment of the ~~Primary Parties shall have received~~ 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, 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 ~~any Governmental Entity any direction (oral~~ the OTS or ~~written)~~ the FDIC to make any material change in the method of conducting ~~their business with which it~~ its respective business. (xxi) The information in the Prospectus under the captions "Regulation," "The Conversion," "Restrictions on Acquisition of Us and Peoples Federal and Related Anti-Takeover Provisions" and "Description of Our Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has ~~not complied~~ been reviewed by such counsel and is correct in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation 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 ~~Offering~~ proceedings, or legal conclusions, has been reviewed by such counsel and ~~no statute~~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-Tax Considerations" 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, ~~rule or regulation~~ such counsel shall ~~have been enacted, entered, promulgated or enforced by any Governmental Entity~~ state that ~~prohibits or makes illegal consummation~~ during the preparation 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 AgreementApplication, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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. , 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 (~~o) At~~ 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 Registration Statement, the Prospectus, or ~~prior to~~ any amendment or supplement thereto (other than the ~~Closing Date~~financial statements, ~~counsel to~~ the ~~Agent sh~~notes thereto, and other tabular, financial, statistical and appraisal data in

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~~ Magyar Parties herein contained are, at and as of the commencement of the 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~~ Magyar 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~~ Magyar Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 NJDBI, the Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion ~~Application and the Holding Company~~ Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on~~ and the ~~date of this Agreement~~NJDBI, ~~or with~~ and the ~~Agent’s consent at a later time and date; and~~ Holding Company Merger Application shall have been approved by the Federal Reserve 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, to the knowledge of the ~~Primary~~ Magyar 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 Magyar Parties~~’ knowledge~~, threatened by the Federal Reserve, the NJDBI, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, PC, 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 Proxy Statements, the Conversion Application, and the Holding Company Merger Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the Magyar Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statements, the Conversion Application, and the Holding Company Merger Application, 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 Statements, the Conversion Application, and the Holding Company Merger Application 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 Magyar Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statements, Conversion Applications, and the Holding Company Merger Application, 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 RSM US LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that RSM US 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 RSM US 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 Magyar 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 Magyar 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 Magyar Parties, which are subject to the internal controls of the accounting system of the Magyar Parties and other data prepared by the Magyar 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 opinion,~~ receive a letter from RSM US LLP dated ~~as of~~ the Closing ~~Date and~~ Date, addressed to the ~~Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the~~ Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in ~~form and substance as reasonably acceptable~~ clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the ~~Agent~~Closing Date. (ef) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ At the Closing Date, counsel to the ~~Offering, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~Magyar 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ Magyar Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 or any state authority; (vi) no order suspending the Conversion~~NJDBI, the ~~Offering or~~ Federal Reserve, the ~~use of the Prospectus has been issued and no proceedings for that purpose are pending or~~Commission, ~~to the knowledge of the Primary Parties, threatened by the Federal Reserve Board~~ or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the NJDBI and the Federal Reserve ~~Board~~ 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 Magyar 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 Magyar Parties expressed in the Appraisal as most recently updated, remains in effect. (i) None of the ~~Primary~~ Magyar 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 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~~ Magyar Parties ~~considered~~ independently, or the Magyar Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the letters from the Federal Reserve ~~Board~~ and ~~any other applicable regulator~~ the NJDBI approving the Conversion ~~Application and~~ Application, (ii) a copy of the letter from the Federal Reserve approving the Holding Company ~~Application and authorizing the use of the Prospectus;~~ Merger Application, (iiiii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company;~~ , (iv) a certificate from the FHLB-New ~~Jersey Banking Department~~ York evidencing the ~~good standing of the~~ Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , (vi) a certificate from the ~~FHLB-~~Federal Reserve Bank of New York evidencing that the ~~Bank’s membership therein;~~ Company is duly registered under the BHC Act, and (vii) ~~a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing date, none of the Magyar Parties will have received from the Federal Reserve, the 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). (n) All such opinions, certificates, letters and documents will be in compliance with the ~~Offering~~ 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 Magyar Party and delivered to the Agent or to counsel for the ~~delivery of~~ Agent shall be deemed a representation and warranty by such Magyar Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the ~~Closing Date~~mailing of the Prospectus, ~~counsel~~ to the 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 Conversion Shares under applicable state securities law. (p) To the extent a sale or other disposition or transfer of shares of Common Stock or other securities of the 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 B hereto shall deliver to the Agent sha “lock-up” agreement, each in substantially the form of Exhibit C hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Company on or before the date hereof and shall be in full force and effect on the Closing Date.

Appears in 1 contract

Sources: Agency Agreement (Magyar 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 Offering and at and as of the Closing ~~Date~~Date (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 ~~Conversion~~ MHC Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Offering imposed upon them by the ~~Federal Reserve Board or any other applicable regulator.~~OTS. 22NEXT PAGE (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application shall have been~~ MHC Applications approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Silver, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~Taff, L.L.P., special counsel for the Company, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 Company and the ~~respective dates~~ MHC have 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, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; . (iii) ~~the representations~~ The Bank is a validly existing federally chartered savings bank in stock form, duly authorized to conduct its business and ~~warranties in Section 4 are true and correct with the same force and effect~~ own its property as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 described 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 Offering or the delivery . The activities 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 Bank as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company General Disclosure Package and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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~~ permitted by the ~~1933 Act~~rules, ~~applicable accounting requirements~~ regulations and practices of the ~~Commission, and GAAP applied on a basis substantially consistent with that~~ OTS. All of the audited financial statements included in the Prospectus. (k) 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 outstanding capital stock of the ~~Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning~~ Bank upon completion of the ~~Conversion Regulations~~Offering will be duly authorized and, ~~(ii) stating in effect that~~ upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the ~~Appraisal prepared by such firm complies in all material respects with the applicable requirements~~ Company free and clear of ~~the Conversion Regulations~~any liens, ~~and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank~~encumbrances, ~~as most recently updated, remains in effect. (l) To the extent a sale~~ claims 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 Daterestrictions. (m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Sound Financial, 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, 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 ~~Offering~~ 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, 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application approved by the OTS, and the Holding Company Application ~~shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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, the Mid-Tier Holding Company's, or the Bank's knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Luse, Lehman, Gorman, Pomerenk & Schick, P.C., special counsel for the ~~Primary Parties~~Compan▇, ~~which shall also state that~~ ▇▇e M▇▇, ▇▇▇ Mid-▇▇▇▇ ~~▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~Holding Company, and the Bank, in form and substance ~~as attached hereto as Exhibit C.~~to the effect that: (di) 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. (ii) The Mid-Tier Holding 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 Mid-Tier Holding Company is duly authorized and validly issued, fully paid, and non-assessable and __________ shares of such stock are directly owned and of record by the MHC, free and clear of any liens, encumbrances, claims, or other restrictions. (iii) The Bank has been organized and is a validly existing federal savings association in capital stock form of organization, 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 will be duly authorized and, 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 other restrictions. (iv) The MHC has been 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. (v) 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 Prospectus under the caption "The Conversion-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. (vi) The Subsidiaries are duly incorporated and validly existing as corporations in good standing under the laws of the State of ______________________ with full corporate authority to own their properties and conduct their businesses substantially as described in the Prospectus. To such counsel's knowledge, the Subsidiaries have obtained all material licenses, permits, and other governmental authorizations currently required for the conduct of their businesses, and all such material licenses, permits, and other governmental authorizations are in full force and effect, and the Subsidiaries are in all material respects complying therewith. To such counsel's knowledge, the Subsidiaries are not in violation of their respective certificates of incorporation or bylaws. The activities of the Subsidiaries as described in the Prospectus are permitted by the Savings Institution Regulations. All of the outstanding stock of the Subsidiaries have been duly authorized and are validly issued, fully paid, and nonassessable and such stock is owned of record by the Bank, free and clear of any liens encumbrances, claims, or other restrictions. (vii) 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 upon incorporation of the Company, no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Conversion Stock subscribed for pursuant to the Offerings 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 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 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. (viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been validly 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 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 equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law). (ix) 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 has been authorized 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) The Plan has been adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company, and the Bank and, based upon the certificate of the inspector of election, by the members of the MHC and the stockholders of the Mid-Tier Holding Company and the Bank. (xi) 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 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 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). (xii) 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. (xiii) At the ~~Closing Date~~time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the ~~Agent shall have received~~ Conversion Application, including the ~~favorable opinion~~Prospectus contained therein, ~~dated~~ complied as to form in all material respects with the requirements of the ~~Closing Date~~ Conversion Regulations, federal law and ~~addressed~~ all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data and accounting information included therein, as to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agentwhich no opinion need be rendered). (exiv) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to~~ At the ~~Offering~~time that the Registration Statement became effective, ~~including Agent’s participation~~ (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, ~~shall have been furnished prior~~ as to which no opinion need be rendered) complied as to form in all material respects with the ~~mailing~~ requirements of the ~~Prospectus~~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 Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 requirements of the ~~Shares under applicable state securities~~ 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law. (fxv) ~~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 Date~~all 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 respective dates as of which information is given description thereof contained in the Registration ~~Statement~~Statement and Prospectus, and the form of certificate used to evidence the Shares is in proper form. (xvi) 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 ~~General Disclosure Package~~ MHC, the Mid-Tier Holding Company, 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, ~~no event has occurred that should have been set forth in an amendment or supplement~~ including ordinary routine litigation incidental to the ~~Prospectus that has not been so set forth~~Company's, ~~including specifically~~the MHC's, ~~but without limitation~~the Mid-Tier Holding Company's, ~~any material adverse change~~ or the Bank's business, are, considered in the ~~condition~~aggregate, ~~financial~~ not material. (xvii) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or ~~otherwise,~~ other instruments required to be described or referred to in the ~~earnings~~Conversion Application, ~~capital~~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, ~~properties~~the Registration Statement or the Prospectus. The description in the Conversion Application, ~~business or prospects~~ 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) To such counsel's Actual Knowledge, the Company, the MHC, the Mid-Tier Holding Company, and the Bank have conducted the Conversion, in all material respects, in accordance with all applicable requirements of the ~~Primary Parties independently~~Plan and applicable federal law, ~~or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business~~ and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied Plan complies in all material respects with all ~~material agreements~~ applicable Delaware and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ federal laws, rules and regulations, including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8;~~ Conversion Regulations (~~v) no stop order suspending the effectiveness of the Registration Statement~~ except where a written waiver has been ~~initiated or~~received); no order has been issued by the OTS, ~~to the knowledge of the Primary Parties, threatened by~~ the Commission or any state ~~authority; (vi) no order suspending~~ authority to suspend the ~~Conversion, the Offering~~ Offerings or the use of the ~~Prospectus~~ Prospectus, and no action for such purposes has been ~~issued and no proceedings for that purpose are pending~~ instituted or, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, threatened by the ~~Federal Reserve Board~~ OTS or the Commission or any ~~other federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hxix) 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 and as of the latest date as of which To such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 Agreementcounsel's Actual Knowledge, the ~~Agent shall receive a letter from BDO USA~~Company, ~~LLP~~the MHC, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, and the Bank have obtained all material federal and Delaware licenses, permits and other ~~than normal deposit fluctuations~~ 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 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. (xx) To such counsel's Actual Knowledge, the Company, the MHC, the Mid-Tier Holding Company, and the Bank are not in violation of their 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, the Mid-Tier Holding Company, or ~~decreases~~ 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 ~~total assets~~creation or imposition of any lien, ~~total loans~~charge or encumbrance upon any property or assets of the Company, the ~~allowance for loan losses~~MHC, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which ~~are subject to~~ the ~~internal controls of~~ Company, the MHC, the Mid-Tier Holding Company, or the ~~accounting system and other data prepared~~ 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, the Mid-Tier Holding Company, ~~directly from~~ or the Bank is subject (other than the establishment of a liquidation account), and such ~~accounting records~~action will not result in any violation of the provisions of the articles of incorporation, to bylaws or charter, as applicable, of 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) At the Closing DateCompany, the ~~Agent shall receive a letter dated the Closing Date~~MHC, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of~~ , or the Bank; , or any applicable federal or Delaware law, act, regulation (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent except that no opinion need be rendered with respect to the ~~date hereof, there shall not have occurred any~~ securities or blue sky laws 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 various jurisdictions or the ~~delivery of the Shares on the terms~~ rules 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~~regulations of

Appears in 1 contract

Sources: Agency Agreement (Peoples Bancorp Inc /De/)

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 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 Conversion ~~Regulations (except to~~ Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board and any other~~ applicable ~~regulator)~~laws of Indiana, 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 ~~Federal Reserve Board or any other applicable regulator~~Department and the FDIC. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ Department and the Notice not objected to by the 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ Department, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇~~▇▇▇▇▇ ▇▇▇▇▇▇▇~~▇ & ▇▇▇▇▇▇▇~~▇ LLP~~▇▇, special counsel for the ~~Agent~~Company and the Bank, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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 Indiana. (ii) ~~since the respective dates~~ The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as ~~of which information is given~~ described in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (iii) The Bank is a validly existing Indiana chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing Indiana 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 to such counsel's Actual Knowledge, no ~~event has occurred that should have been~~ proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in ~~an amendment or supplement~~ the Prospectus under the caption "The Conversion--Effects of Conversion to Stock Form on Depositors and Borrowers of Mutual Savings Bank--Effect on Liquidation Rights," to the ~~Prospectus~~ extent that such information constitutes matters of law and legal conclusions, has ~~not~~ been ~~so set forth, including specifically, but without limitation, any~~ reviewed by such counsel and is accurately described in all material ~~adverse change in~~ respects. (v) Immediately following the ~~condition, financial or otherwise, or in the earnings, capital, properties, business or prospects~~ consummation of the ~~Primary Parties independently~~Conversion, or the authorized, issued and outstanding Common Shares of the ~~Primary Parties considered as one enterprise, whether or not arising in~~ Company will be within the ~~ordinary course of business and the conditions~~ range set forth in ~~this Section 8~~ the Prospectus under the caption "Capitalization," and no Common Shares have been ~~satisfied; (iii) 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; 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 ~~Primary Parties have~~ 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 Department and the Prospectus has been authorized for use by the Department. The FRB has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and to such counsel's Actual Knowledge, no action has been taken, and 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 Department's approval of the Conversion, the FDIC's non-objection to the Conversion and the FRB's approval of 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 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 (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 Department, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Department 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 of the Notice, including the Prospectus contained therein, was not objected to by the FDIC, the Notice, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the FDIC 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). (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 and the 1933 Act Regulations. (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) 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. (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 Conversion Application, the Notice, 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 Notice, the Registration Statement or the Prospectus. The description in the Conversion Application, the Notice, 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 Plan complies in all material respects with all ~~material agreements~~ applicable federal and ~~satisfied all conditions on their part~~ Indiana law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to ~~be performed or satisfied at or prior to~~ such counsel's Actual Knowledge, the ~~Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement~~ Conversion has been ~~initiated or~~effected by the Company and the Bank in all material respects in accordance with the Conversion Regulations and applicable Office, FDIC and FRB approvals or letters of non-objection issued thereunder; to such counsel's Actual Knowledge, no order has been issued by the ~~knowledge of~~ Department, the ~~Primary Parties~~FDIC , ~~threatened by~~ the FRB, the Commission or any state ~~authority; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ Department, the FDIC, the FRB, the Commission or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board~~ Department, the FDIC or ~~any other applicable regulator~~ the FRB, as the case may be, 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the Holding Company Application, Notice 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hxviii) ~~Prior to~~ To such counsel's Actual Knowledge, the Company and at the ~~Closing Date: (i)~~ 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 ~~reasonable opinion of~~ Company and 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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 Bank are in all material respects complying therewith. (~~which direction~~xix) Neither the Company nor the Bank is in violation of its Articles of Incorporation and Bylaws, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 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 ~~knowledge~~ financial condition or results of operations of the ~~Primary Parties~~Company and the Bank on a consolidated basis; to such counsel's Actual Knowledge, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 and delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, dated as~~ incurrence of the ~~date hereof~~ obligations herein set forth and ~~addressed~~ 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 the Bylaws of the Company or the Bank or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the ~~Agent: (i) confirming that BDO USA, LLP is a firm~~ securities and blue sky laws of ~~independent registered public accountants within~~ various jurisdictions or the ~~applicable~~ rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and or regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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 NASD need 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, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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”rendered) or ~~in the over-the-counter market~~order or court order, writ, injunction 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 Prospectusdecree. ~~(o) At or prior to the Closing Date, counsel to the Agent sh~~

Appears in 1 contract

Sources: Agency Agreement (Third Century 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 Parties~~ Company and the Bank herein are, at and as of the commencement of the 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 Conversion ~~Regulations (except to~~ Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board 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 ~~Federal Reserve Board or any other applicable regulator~~Agencies. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall ~~have been~~ be approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS or any ~~other federal or~~ state authority. (c) At the Closing Date, the Agent shall have ~~received the~~ received: 18NEXT PAGE (1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Silver, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, L.L.P., special counsel for the Company 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~~ a corporation under the laws of the United States. (ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as ~~Exhibit C.~~described in the Registration Statement and the 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 the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened. (v) The Company has 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 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 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; 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 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, 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 Conversion Regulations and the SLHC 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 in the Conversion Regulations or in the Agency approvals of the Conversion Application and the Holding Company Application, (c) the securities or "blue sky" laws of various jurisdictions and (d) At the ~~Closing Date, the Agent shall have received the favorable opinion, dated as~~ rules and regulations of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the AgentNASD. (exi) ~~A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating~~ 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 ~~Offering~~Commission. (xii) At the time the Conversion Application, including ~~Agent’s participation~~ the Prospectus contained therein, ~~shall have been furnished prior~~ was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the ~~mailing~~ requirements of the ~~Prospectus~~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 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 ~~a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ 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~~ requirements of the ~~Shares under~~ Conversion Regulations, Texas, Maryland and federal 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). (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 Conversion Regulations, the SLHC Act and federal law. (fxiv) ~~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 Date~~all 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 respective dates as of which information is given description thereof contained in the Registration ~~Statement~~Statement and Prospectus, and the ~~General Disclosure Package~~ 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 all pending legal and governmental proceedings to which the Company 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, ~~no event has occurred that should have been set forth in an amendment or supplement~~ including ordinary routine litigation incidental to the ~~Prospectus that has not been so set forth~~Company's or the Bank's business, ~~including specifically~~are, ~~but without limitation, any material adverse change~~ considered in the ~~condition~~aggregate, ~~financial~~ not material. (xvi) There are no material contracts, indentures, mortgages, loan agreements, notes, leases or ~~otherwise~~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 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, which are covered by other clauses of this opinion, (b) the satisfaction of the post-Offering conditions in the Conversion Regulations or in the ~~earnings, capital, properties, business or prospects~~ OTS approval of the ~~Primary Parties independently~~Conversion Application, (c) the securities or "blue 21NEXT PAGE sky" laws of various jurisdictions, and (d) the rules and regulations of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied NASD. The Plan complies in all material respects with all ~~material agreements~~ applicable Texas and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ federal laws, rules, regulations, decisions and orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v)~~ 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, or any state ~~authority; (vi) no order suspending the Conversion,~~ authority to suspend the 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~~ instituted or, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, threatened by the ~~Federal Reserve Board~~ OTS, or any ~~other federal or~~ state ~~authority;~~ authority and ~~(vii) to the knowledge of the Primary Parties,~~ no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ Agencies, 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~~Plan, the ~~General Disclosure Package and Prospectus, any material loss~~ Conversion 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in 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 ~~Agent~~Bank 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 Parties considered as one enterprise~~Company and the Bank on a consolidated basis. The execution and delivery of this Agreement, ~~from and as~~ the occurrence of the ~~latest date 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 ~~Prospectus~~creation or imposition of any lien, ~~other than transactions referred to~~ charge or ~~contemplated therein; (ii) none~~ encumbrance upon any property or assets of the ~~Primary Parties shall have received~~ 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, 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 ~~any Governmental Entity any direction (oral or written)~~ the OTS to make any material change in the method of conducting ~~their business with which it~~ its respective business. (xxii) The information in the Prospectus under the captions "How we are Regulated," "Affiliated Bank's Conversion," "Restrictions on Acquisition of BancAffiliated and 22NEXT PAGE Affiliated Bank" and "Description of Capital Stock of BancAffiliated," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has ~~not complied~~ been reviewed by such counsel and is correct in all material ~~respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none~~ respects. The discussion of ~~the Primary Parties shall have been in default (nor shall an event have occurred which, with notice~~ statutes or ~~lapse of time~~ regulations described or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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~~ accurate summaries and fairly present 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~~information required to be shown. (kxxiii) At The Company is in good standing as a savings and loan holding company under the ~~Closing Date~~SLHC Act. (xxiv) In addition, such counsel shall state that during the preparation of the Conversion Application, the Holding Company ~~shall receive a letter from RP Financial~~Application, 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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~~ , they participated in conferences with certain officers of, the ~~Closing Date~~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 Holding Company Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel ~~to the Agent sh~~have not

Appears in 1 contract

Sources: Agency Agreement (Bancaffiliated 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~~ North Penn Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and ~~correct in all material respects~~correct, the condition that the ~~Primary~~ North Penn 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 Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board The Registration Statement 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 Federal Reserve Board or any other applicable regulator. (b) The S-4 Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application shall have been approved by the Department and the OTS, the Holding Company Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ OTS, the ~~date of this Agreement, or with~~ State Applications shall have been approved by the ~~Agent’s consent at a later time~~ Department and ~~date;~~ the Bank Merger Application shall have been approved by the FDIC and ~~at the Closing Date,~~ no stop order or other action suspending the effectiveness of the Registration Statement or the S-4 Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefore~~ therefor initiated or, to the knowledge of the ~~Primary~~ North Penn 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 North Penn Parties~~’ knowledge~~, threatened by the Department, the FDIC, the OTS, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal or state authority~~governmental 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 benefit~~Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇▇▇ LLP and/or local counsel acceptable to the Agent, ~~special~~ in form and substance satisfactory to counsel for the ~~Primary~~ Agent as set forth in Exhibit D hereto. The opinion may be limited to matters governed by laws of the United States and the Commonwealth of Pennsylvania 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 North Penn 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 North Penn Parties~~, which~~ . The opinion of such counsel for the North Penn Parties shall ~~also~~ 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 North Penn 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP in form and substance to the effect that during the preparation of the Registration Statement, S-4 Registration Statement, the Prospectus and Shareholders’ Proxy Statement/Prospectus, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the North Penn Parties, counsel to the Agent, representatives of the independent registered public accounting firm for the North Penn Parties and representatives of the Agent at which the contents of the Registration Statement, S-4 Registration Statement, the Prospectus and Shareholders’ Proxy Statement/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)), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement, S-4 Registration Statement, Prospectus, and Shareholders’ Proxy Statement/Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP to believe that the Registration Statement and S-4 Registration Statement, at the time they were 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, S-4 Registration Statement, Prospectus or Shareholders’ Proxy Statement/Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~LLP~~ L.L.P., counsel for the Agent, with respect to such matters as the Agent may ~~rely on~~ reasonably require; such opinion ~~in rendering its opinion pursuant~~ may rely, as to ~~Section 8(d)~~ matters of ~~this Agreement~~fact, ~~in form~~ upon certificates of officers and ~~substance as attached hereto as Exhibit C. (d) At the Closing Date, the Agent shall have received the favorable opinion, dated as~~ directors of the ~~Closing Date~~ North Penn Parties delivered pursuant hereto or as such counsel may reasonably request and ~~addressed to~~ upon the ~~Agent and for its benefit,~~ opinion of ~~▇▇▇~~▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP. (4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~LLP, special counsel for the Agent, in form and substance as reasonably acceptable~~ LLP addressed to the ~~Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ Holding Company and the Agent relating to the ~~Offering~~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 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) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates is an independent registered public accounting firm within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates’ 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, and the 1934 Act and the 1934 Act Regulations and the Conversion 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 latest available unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the North Penn Parties, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee and shareholders 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 non-performing loans, special mention loans or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for stock option plans) at the date of such letter as compared with amounts shown in the latest unaudited statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, provision for loan losses or net interest income after provision, increase in non-interest expense or net income of the Mid-Tier Holding Company and the Bank on a consolidated basis for the period commencing immediately after the Recent Developments period 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 North Penn 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date. (e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained. (f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and ~~the~~ Chief Financial Officer of each of the ~~Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel~~North Penn 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 S-4 Registration Statement and at the time the ~~Prospectus~~ Registration Statement and S-4 Registration Statement became authorized for final use, the Prospectus and Shareholders’ Proxy Statement/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) there has not been, since the respective dates as of which information is given in the Registration Statement and S-4 Registration Statement, ~~the General Disclosure Package and the Prospectus, no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and ~~the conditions set forth in this Section 8 have been satisfied~~S-4 Registration Statement; (iii) 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; (iv) the ~~Primary~~ North Penn Parties have complied in all material respects with all material agreements and satisfied all conditions on ~~their~~ its part to be performed or satisfied at or prior to the Closing ~~Date,~~ Date including the conditions contained in this Section 810; (v) no stop order ~~suspending the effectiveness of the Registration Statement~~ has been ~~initiated~~ issued or, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened~~ is threatened, by the Commission or any ~~state authority~~other governmental body; (vi) no order suspending the Offering, the Conversion, the ~~Offering~~ acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion, the Exchange or the ~~use~~ effectiveness of the Prospectus or Shareholders’ Proxy Statement/Prospectus has been issued 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 ~~Federal Reserve Board~~ Department, the FDIC, the OTS, the Commission, or any other federal or state authority; ~~and~~ (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the ~~Federal Reserve Board~~ Department, the FDIC or ~~any other applicable regulator~~ the OTS in approving the Plan or to enjoin the Conversion, and (viii) that the officers and directors of the North Penn 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 ~~Primary~~ Closing Date, (i) confirming that said firm is independent of the North Penn 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 North Penn 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 North Penn 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 North Penn 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 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 Date: (i) in the reasonable opinion of the ~~Agent,~~ Agent there shall have been no ~~material adverse change~~ Material Adverse Effect on the financial condition or in the ~~financial condition~~earnings, ~~results of operations~~ capital, properties or business affairs of the ~~Primary~~ North Penn Parties independently or considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the North Penn Parties, independently or considered as one enterprise, from the latest date as of which the financial condition of the North Penn Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iiiii) none of the ~~Primary~~ North Penn Parties shall have received from ~~any Governmental Entity~~ the Department, the 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) and which would be reasonably be expected to have a Material Adverse Effect; (~~iii~~iv) none of the ~~Primary~~ North Penn 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; (ivv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (New North Penn 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 herein contained are, at and as of the commencement of the 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal ~~Reserve Board~~ Reserve, the FDIC, and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal ~~Reserve Board not later than 5:30 p.m. on~~ Reserve, as applicable, as of the date of this ~~Agreement~~Agreement 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, 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 ~~Commission~~Federal Reserve, the ~~Federal Reserve Board~~ Commission or the FDIC or any other ~~federal~~ regulatory authority. The Shares shall have been registered for offering and sale or ~~state authority~~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~~ opinion, dated as of the Closing Date and addressed to the Agent and for its ~~benefit~~benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇, PC, 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 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 ~~counsel~~ 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 ~~shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on~~ 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 ~~opinion~~ letter, such amounts and/or percentages set forth in ~~rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance~~ the Prospectus as ~~attached hereto as Exhibit C. (d) At the Closing Date,~~ the Agent ~~shall~~ may reasonably request, and they have ~~received the favorable opinion, dated as of the Closing Date~~ found such amounts and ~~addressed~~ percentages to ~~the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent,~~ be in ~~form and substance as reasonably acceptable~~ agreement therewith (subject to ~~the Agent~~rounding). (e) ~~A blue sky memorandum~~ Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ US, LLP ~~relating~~ dated the date hereof and addressed to the ~~Offering~~Agent, ~~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~~ 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 ▇▇▇▇▇ ~~LLP shall state~~ ▇▇▇▇▇ 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 ~~rely. The blue sky memorandum will relate~~ reasonably request, and they have found such amounts and percentages to ~~the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law~~be in agreement therewith (subject to rounding). (f) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the Closing Date, addressed to the 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 (f) which for purposes of such letter shall not be more than three business days prior to the Closing Date. (g) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, 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 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 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. (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 in form and substance reasonably satisfactory to the Agent’s Counsel~~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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been set forth in an amendment or supplement~~ any Material Adverse Effect relating to the Prospectus 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, business or prospects of 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 ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (~~iii~~3) 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; ; (iv4) the Primary Parties and the Regal Parties have complied in all material respects with all ~~material~~ agreements related to the Conversion and the Merger and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v5) 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 or~~issued and, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for ~~that~~ any such purpose ~~are pending or, to the knowledge of the Primary Parties,~~ have been initiated or threatened by the Federal ~~Reserve Board~~ Reserve, the Commission, the FDIC or any other federal or state authority; ~~and~~ and (~~vii~~7) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal ~~Reserve Board~~ Reserve, the FDIC or ~~any other applicable regulator~~ the Department in approving the ~~Conversion~~Applications 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 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~~ independently or taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ Parties will have received (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board~~ approving the Company Application and ~~any other applicable regulator~~ a copy of the letter from the Federal Reserve approving the FRB Waiver Request; (ii) a copy of the letter from the Department approving the Conversion Application and ~~the Holding Company Application and authorizing the use~~ a copy of the ~~Prospectus~~letter from the Department approving the New Jersey Merger Application; (iiiii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shcopy

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~~ 1st Security Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the ~~Primary~~ 1st Security 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~~ 1st Security Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ WDFI, FDIC, 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 ~~Federal Reserve Board~~ FRB or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion~~ Form AC and Holding Company Application shall have been approved by the WDFI and the FDIC, and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB, in each case 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, to the knowledge of the Primary Parties,~~ 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~~ 1st Security Parties’ knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ FRB, the WDFI, 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Silver, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~Taff, L.L.P., special counsel for the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, PC, special counsel for the Agent, in form and substance as ~~reasonably acceptable to the Agent.~~attached hereto as Exhibit D. (e) A blue sky memorandum from Silver, ▇▇~~▇▇▇~~ ▇▇▇▇▇▇ ~~LLP~~ & Taff, L.L.P. relating to the Offering, 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 Silver, ▇▇~~▇▇▇~~ ▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇, 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~~ 1st Security 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary~~ 1st Security 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 1st Security Parties independently, or of the ~~Primary~~ 1st Security Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ 1st Security Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the ~~Primary~~ 1st Security Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the 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~~ 1st Security Parties, threatened by the ~~Federal Reserve Board~~ FRB, the WDFI, FDIC or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ 1st Security Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ WDFI, FDIC, FRB or any other applicable regulator approving the Conversion. (g) None of the ~~Primary~~ 1st Security 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 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~~ 1st Security Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ 1st Security Parties shall have received from ~~any Governmental Entity~~ the WDFI, FDIC or the FRB 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the 1st Security Parties taken as a ~~Material Adverse Effect~~whole; (iii) none of the ~~Primary~~ 1st Security 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; (iv) 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~~ 1st Security Parties, threatened against the any of the ~~Primary~~ 1st Security Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 Offering1st Security 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~~ 1st Security Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA,~~ ▇▇▇▇-▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ ▇▇▇▇-▇▇▇▇▇ 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~~ Bank as of June 30, 2011 and December 31, ~~2014~~2010 and 2009, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for the six months ended June 30, 2011 and 2010 each of the years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~2010, 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 ~~SEC~~ FRB and any other applicable regulator and the 1933 Act; (ii) stating ~~that~~ 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 Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the 1st Security Parties 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) 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, WDFI and FDIC 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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~~ 1st Security 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 Title 12 of the ~~Conversion~~ 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. (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 letters from the ~~Federal Reserve Board~~ WDFI and ~~any other applicable regulator~~ the FDIC approving the ~~Conversion Application and~~ Form AC, from the FRB approving the Holding Company Application and authorizing the use of the Prospectus; (ii) ~~a copy of the order from~~ confirmation that the Commission ~~that~~ declared the Registration Statement effective; (iii) ~~certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv)~~ a certificate from the ~~New Jersey Banking Department~~ WDFI evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-~~New York~~ Seattle evidencing the Bank’s membership therein; (vii) a certificate from the ~~Maryland~~ Washington Secretary of State ~~Department of Assessments and Taxation~~ evidencing the good standing of the ~~Holding Company;~~ Company and (viii) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, counsel to the Agent shshall 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 1st Security 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 1st Security Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such West End Party to the Agent as to the statements made therein.

Appears in 1 contract

Sources: Agency Agreement (FS 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~~ Meetinghouse Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ Commissioner, the FRB and ~~any other applicable regulator~~the 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 ~~Federal Reserve Board~~ Commissioner or ~~any other applicable regulator~~the FDIC. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion ~~Application~~ Applications and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ Commissioner, the FDIC 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; 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ Commissioner, the FDIC or ~~any other federal or state authority~~the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the ~~Agent~~Holding Company and the Bank, in form and substance as ~~reasonably acceptable to the Agent.~~attached hereto as Exhibit C. (ed) A blue sky memorandum from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP relating to the Offering, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 Meetinghouse Parties independently, or of the ~~Primary~~ Meetinghouse Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Meetinghouse Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ Commissioner, the FDIC, the FRB or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ Meetinghouse Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ Commissioner or ~~any other applicable regulator approving~~ the ~~Conversion~~FDIC. (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 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~~ Meetinghouse Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Meetinghouse Parties shall have received from ~~any Governmental Entity~~ the Commissioner, the FDIC or the FRB 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Meetinghouse Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingMeetinghouse 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 ~~BDO USA, LLP~~▇▇▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA, 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~~ Bank as of ~~December 31, 2014, June~~ September 30, ~~2014~~ 2011, 2010 and ~~June 30~~2009, ~~2013~~ and for the ~~six~~ three months ended December ~~31, 2014 and the years ended June~~ 30, ~~2014~~ 2011 and ~~2013~~2010, 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 ~~SEC~~ Commissioner, the FDIC and the FRB and the 1933 Act; (ii) stating ~~that~~ 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 Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Meetinghouse Parties 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) 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 Commissioner, the FDIC and 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (kj) 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 ~~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 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. (mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ Commissioner approving the Massachusetts Conversion ~~Application and the Holding Company~~ Application and authorizing the use of the Prospectus; (ii) a copy of the ~~order~~ 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; (iv) confirmation that the Commission ~~that~~ declared the Registration Statement effective; (~~iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv~~v) a certificate from the ~~New Jersey Banking Department~~ Commissioner evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-~~New York~~ Boston evidencing the Bank’s membership therein; (~~vii~~viii) a certificate from the Maryland ~~State~~ Department of Assessments ~~and~~ & Taxation evidencing the good standing of the Holding ~~Company;~~ Company and (~~viii~~ix) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (om) At or prior to the Closing Date, counsel to the Agent shshall 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

Sources: Agency Agreement (Meetinghouse 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~~ Savings Bank and the Company herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the ~~Primary Parties~~ Savings Bank and the Company 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~~ Savings Bank and the Company shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board or~~ SEC, the OTS [, the Department] and any ~~other applicable regulator~~state securities agency. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ OTS [and the Department] 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, to the knowledge of the Primary Parties,~~ 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’~~ Savings Bank's or the Company's knowledge, threatened by the ~~Commission~~SEC, the ~~Federal Reserve Board~~ OTS, the FDIC [, the Department] or any other ~~federal or state~~ governmental 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇▇~~▇▇▇~~▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the ~~Agent~~Savings Bank and the Company, in form and substance ~~as reasonably acceptable~~ to the ~~Agent~~effect that: (i) The Company has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Delaware; the Savings Bank has been duly organized and is validly existing in good standing as a mutual savings and loan association under the laws of the State of New Jersey. (eii) ~~A blue sky memorandum~~ Both of the Savings Bank and the Company have full 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; and both of the Savings Bank 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 Savings Bank and the Company considered as one enterprise. (iii) The Savings Bank is a validly existing state-chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing state-chartered savings bank in 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 capital stock of the Savings Bank 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 Savings Bank is a member in good standing of the FHLB-New York. The deposit accounts of the Savings 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 and the Stock Offering - Effects of the Conversion - 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 Shares of the Company will be within the range set forth in the Prospectus under the caption "Capitalization" and no Shares have been 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 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 Plans with funds borrowed from ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ 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. The form of certificate used to evidence the 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. (vi) The Savings 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 Savings Bank and the Company; and this Agreement is a valid and binding obligation of the Savings Bank and the Company, enforceable against the Savings Bank and 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 New Jersey state-chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the ~~Offering~~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 ~~Agent’s participation therein, shall have been furnished prior~~ 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 ~~mailing~~ 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 ~~Prospectus, to~~ OTS [and the Department] and the Prospectus and Proxy Statement has been authorized for use by the OTS [and the Department]. The OTS [and the Department] has approved the Holding Company ~~with~~ Application and the exchange by the Company of all of the issued and outstanding capital stock of the Savings Bank for a ~~copy thereof addressed~~ majority interest in the Company, and no action has been taken and, to ~~Agent~~ such counsel's Actual Knowledge, none is pending or ~~upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate~~ threatened to revoke any such authorization or approval. (viii) Pursuant to the ~~necessity~~ Conversion Regulations, the Plan has been approved and duly adopted by the required vote of ~~obtaining~~ the directors of the Savings Bank and the Company. (ix) Subject to the satisfaction of the conditions to the OTS's [and the Department's] approval of the Conversion, no further approval, registration, authorization, consent or ~~confirming exemptions~~other order of any federal or state 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 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 SEC. (xi) At the time the Conversion Application, including the Prospectus and Proxy Statement contained therein, was approved by the OTS [and the Department], the Conversion Application, including the Prospectus and Proxy Statement 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 in form and substance reasonably satisfactory~~ Company conform 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 respective dates as of which information is given description thereof contained in the Registration ~~Statement~~Statement 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, no event has occurred that should have been set forth~~ Prospectus of such documents and exhibits is accurate in ~~an amendment or supplement~~ all material respects and fairly presents the information required to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown. (~~iii~~xvi) ~~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; (iv) the Primary Parties have complied~~ The Plan complies in all material respects with all ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v)~~ 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~~ SEC, the OTS, [the Department,] the FDIC or any ~~state authority; (vi) no order suspending the Conversion,~~ other governmental authority to suspend the 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~~instituted, or to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the OTS, [the Department,] the FDIC or any other ~~federal or state authority; and (vii)~~ governmental authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board~~ OTS [or ~~any other applicable regulator~~ the Department] 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering 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 Savings Bank and the Company 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 Savings Bank, the Company and the Savings Bank are in all material respects complying therewith. (xviii) To such counsel's Actual Knowledge, neither the Savings Bank nor the Company, is in violation of its [Charter] and Bylaws or its [Certificate of Incorporation] 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 Agent~~any 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 Parties considered as one enterprise~~Savings Bank and the Company on a consolidated basis; the execution and delivery of this Agreement, ~~from and as~~ the incurrence of the ~~latest date 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 ~~Prospectus~~creation or imposition of any lien, charge or encumbrance upon any property or assets of the Savings Bank or the Company pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Savings Bank or the Company is a party or by which any of them may be bound, or to which any of the property or assets of the Savings Bank or the Company are subject (other than ~~transactions referred to or contemplated therein; (ii) none~~ the establishment of the ~~Primary Parties shall have received~~ liquidation account), (b) result in any violation of the provisions of the [Certificate of Incorporation] or Bylaws of the Company or the [Charter] or the Bylaws of the Savings 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 the NASD and/or [The Nasdaq Stock Market] need be rendered) or order or court order, writ, injunction or decree. (xix) The Company's [Certificate of Incorporation] and Bylaws comply in all material respects with the laws of the State of Delaware. The Savings Bank's [Charter] and Bylaws comply in all material respects with the laws of the State of New Jersey. (xx) To such counsel's Actual Knowledge, neither the Savings Bank nor the Company is in violation of any directive from ~~any Governmental Entity any direction (oral~~ the OTS, the SEC [, the Department] or ~~written)~~ the FDIC to make any material change in the method of conducting ~~their business with which it~~ its respective business. (xxi) The information in the Prospectus under the captions ["Our Policy Regarding Dividends," "Regulation of ▇▇▇▇▇▇▇ Savings Bank, and ▇▇▇▇▇▇▇ Savings Bancorp, Inc.," "Taxation," "The Conversion and The Stock Offering," "Restrictions on Transfer of Subscription Rights and Shares of Stock," "Restrictions on Acquisition of ▇▇▇▇▇▇▇ Savings Bancorp, Inc.," "Description of Capital Stock of ▇▇▇▇▇▇▇ Savings Bancorp, Inc." and "Registration Requirements"] to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has ~~not complied~~ been reviewed by such counsel and is correct in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation respects. The description of the Conversion process in the Prospectus under the caption ["The Conversion 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 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 The Stock Offering ~~and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation~~ - Effects of the Conversion ~~or Offering;~~ - Tax Aspects"] has been reviewed by such counsel and ~~(vi)~~ fairly describes 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 opinions rendered by ~~the Primary Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed~~ them to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 Savings Bank 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, comply as to form in all material respects~~ Company with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shrespect

Appears in 1 contract

Sources: Agency Agreement (Clifton Savings 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 ~~Federal Reserve Board~~ OTS, the SEC or any other ~~applicable regulator~~authority government. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~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~~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 ~~knowledge of~~ Company’s, the ~~Primary Parties~~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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C, special counsel for the Company, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 Maryland; the MHC has been duly incorporated and is validly existing as a federal mutual holding company under ~~which they were made, not misleading~~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) ~~since~~ 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 ~~dates~~ properties and to conduct their business as ~~of which information is given~~ described in the Registration ~~Statement~~Statement and the Prospectus. (iii) The Bank is a validly existing federally-chartered stock savings bank 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 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, and 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 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 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 ~~General Disclosure Package~~ 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, ~~no event has occurred that should have been set forth in an amendment or supplement~~ 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 ~~Prospectus that~~ extent payment therefor in cash has not been ~~so set forth~~received by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Maryland law or regulation, ~~including specifically~~the Company’s Articles of Incorporation or pursuant to OTS regulations (except to the extent that subscription rights and priorities thereto exist pursuant to the Plan), ~~but without limitation, any~~ and the terms and provisions of the Common 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, business or prospects~~ Common Shares complies with the requirements of Maryland General Corporation Law. Upon the issuance of the ~~Primary Parties independently~~Shares, or 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 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 ~~Primary Parties considered as one enterprise~~transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, ~~whether or not arising in~~ the ~~ordinary course of business~~ MHC, the Mid-Tier Holding Company and the ~~conditions set forth~~ 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 ~~this Section 8 have been satisfied;~~ 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 ~~representations~~ safety and ~~warranties in Section 4 are true~~ soundness of insured depository institutions, and ~~correct with the same force and effect as though expressly made at and as of the Closing Date;~~ (iv) applicable law or public policy with respect to the ~~Primary Parties~~ 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 Holding Company Application have been approved by OTS and the Prospectus and Members’ Proxy Statement have been declared effective and cleared by the OTS, and to the best of such counsel’s Actual Knowledge, no action has been taken, 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, 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 (as to which no opinion need be rendered). (x) The Registration Statement has been declared effective under the 1933 Act and to such counsel’s Actual Knowledge, no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or threatened by the SEC. (xi) At the time the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the 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 Conversion 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), 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 federal law, it being understood, however, that in passing upon the compliance as to form of the Registration Statement and the Prospectus, we have assumed that the statements made therein are correct and complete. (xiii) 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. (xiv) 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. (xv) The Plan complies in all material respects with all ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Conversion Regulations; ~~(v) no stop order suspending the effectiveness of the Registration Statement has been initiated or~~and, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) 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 ~~Federal Reserve Board or any other applicable regulator~~ OTS 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~~Plan, the ~~General Disclosure Package and Prospectus~~Conversion Application, ~~any material loss~~ the 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hxvi) ~~Prior to~~ The execution 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, dated as~~ incurrence of the ~~date hereof~~ obligations herein set forth and ~~addressed to~~ the ~~Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules~~ consummation of the ~~Public Company Accounting Oversight Board~~ transactions contemplated herein do not (~~United States) and stating~~ a), to such counsel’s Actual Knowledge, conflict with or constitute a breach of, or default under, or result in ~~effect that in its opinion~~ the ~~financial statements and related notes~~ creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company ~~as of December 31~~or the Bank pursuant to any material contract, ~~2014~~indenture, ~~June 30~~mortgage, ~~2014 and June 30~~loan agreement, ~~2013 and~~ note, lease or other instrument to which the ~~six months ended December 31~~Company, ~~2014 and~~ the ~~years ended June 30~~MHC, 2014 and 2013, and covered by their opinion 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 SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding ~~Company,~~ Company or the Bank is a party that is filed as an exhibit to the Registration Statement (other than ~~normal deposit fluctuations for~~ the establishment of the liquidation account), (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 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 the NASD and/or Nasdaq Global Select 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,” “Restrictions on Acquisition of United Financial - Maryland” and “Description of Capital Stock of United Financial - 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” 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, ~~or decreases in~~ the ~~total assets~~MHC, ~~total loans, the allowance for loan losses, total deposits or total equity of~~ the Mid-Tier Holding Company and ~~(B) during~~ the ~~period from the date of the recent developments financial information included in the Prospectus~~ Bank with respect 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 the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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)matters. (j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (United 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 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company~~ Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement~~OTS, ~~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, 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 ~~Commission~~OTS, the ~~Federal Reserve Board~~ 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 benefit~~Date, of ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant~~ , P.C. and/or local counsel acceptable to ~~Section 8(d) of this Agreement~~the Agent, in form and substance ~~as attached hereto as Exhibit C.~~satisfactory to the Agent and counsel for the Agent to the effect that: (di) At 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 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 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 ~~Agent shall~~ shares contributed by the MHC to the Holding Company for issuance will have ~~received~~ been duly and validly authorized for issuance, and when issued and delivered by the ~~favorable opinion~~Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, ~~dated~~ 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 be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xi) 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. (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~~ 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 ~~addressed~~ 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 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 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 ~~benefit~~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~~, ~~special counsel for the Agent,~~ P.C. in form and substance ~~as reasonably acceptable~~ to the effect 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 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 (~~e) A blue sky memorandum from~~ without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP relating~~ & ▇▇▇▇▇▇, 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 ~~Offering~~attention of Luse, ~~including Agent’s participation therein~~Gorman, ~~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. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP shall state~~ & ▇▇▇▇▇▇, P.C. to believe that 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, Registration Statement at the time it was declared effective by the ~~Prospectus became authorized for final use~~Commission 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 ~~made~~made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, ~~not misleading; (ii) since the respective dates as of which information is given~~ notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, ~~the~~ or Prospectus or General Disclosure ~~Package and the Prospectus~~Package). (3) The favorable opinion, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; ~~(iv) the Primary Parties have complied in all material respects with all material agreements~~ such opinion may rely, as to matters of fact, upon certificates of officers and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion. (g) None directors of the Primary Parties ~~shall have sustained~~delivered 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 mattersforegoing, nothing ~~came~~ has come to ~~their~~ the attention ~~which~~ of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. that caused ~~them~~ Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement ~~effective; (iii) certificates from~~ at the ~~Federal Reserve Board evidencing~~ time it was declared effective by the ~~valid existence~~ Commission and as of the ~~MHC and~~ date of such letter or that the ~~Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing~~ General Disclosure Package as of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent to the date hereofApplicable Time, ~~there shall not have occurred~~ contained or contains 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 commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, untrue statement of a ~~national emergency~~ material fact or ~~war~~ omitted to state any material fact required to be stated therein 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 shnec

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp/Ga)

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 Offering and at and as of the Closing ~~Date~~Date (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 ~~Conversion~~ MHC Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Offering imposed upon them by the ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application shall have been~~ MHC Applications approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ Silver ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~Taff, L.L.P., special counsel for the Company, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 Company and the ~~respective dates~~ MHC have 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, duly authorized 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 Bank as described in the General Disclosure Package and the Prospectus are permitted by the rules, regulations and practices of the OTS. All of the outstanding capital stock of the Bank upon completion of the Offering will be duly authorized and, 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 other restrictions. (iv) The Bank is a member of the FHLB-Atlanta. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no ~~event~~ proceedings for the termination or revocation of such insurance are pending, or to such counsel's knowledge, threatened; (v) Each Subsidiary has ~~occurred that should~~ been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, and 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 permitted to subsidiaries of a federally chartered savings bank, in the case of the Bank, and a federally chartered mid-tier stock holding company, in the case of the Company, by the rules, regulations and 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 the case may be, free and 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 ~~an amendment or supplement to~~ the General Disclosure Package and the Prospectus ~~that 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business caption "Capitalization," and ~~the conditions set forth in this Section 8~~ no Common Shares have been ~~satisfied; (iii) 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; at the time of the Offering, 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 General Disclosure Package and the Prospectus. The Shares will 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 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 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 ~~Primary Parties~~ 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). (x) The MHC Applications have been approved by the 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. (xi) 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 has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's knowledge, threatened by the Commission. (xiv) The Prospectus has been declared effective by the OTS and such counsel has been advised by the OTS’ staff that no order suspending the effectiveness or 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 the 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 description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, and the form of certificate used to evidence the Common Shares complies with applicable laws in all material respects. (xix) There are no legal or governmental proceedings pending or, to such counsel's knowledge, 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. (xx) Neither the MHC, the Company nor the Bank are required to be registered as an investment company under the Investment Company Act of 1940. (xxi) To such counsel's 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. (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 are covered by other clauses of this opinion, (b) the satisfaction of the post-Offering conditions in the MHC Regulations or in the OTS approval of the 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 ~~material agreements~~ applicable federal law, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~MHC Regulations; ~~(v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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~~ instituted or, to ~~the knowledge of the Primary Parties~~such counsel's knowledge, threatened by the ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan, the MHC Applications or the Prospectus. (gxxiv) ~~None~~ 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 ~~the Primary Parties shall have sustained, since the date of the latest financial statements included~~ their businesses as described in the Registration Statement, ~~the General Disclosure Package~~ and ~~Prospectus~~all such licenses, ~~any material loss or interference with its business from fire~~permits and other governmental authorizations are in full force and effect, 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~~ MHC 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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 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 ~~direction~~it is a party or by which it or its property may be bound, ~~if any, shall have been disclosed to the Agent) and~~ except for such defaults or violations which would ~~be reasonably be expected to~~ not have a Material Adverse Effect; ~~(iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which~~to such counsel's knowledge, 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 and delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, dated as~~ incurrence of the ~~date hereof~~ obligations herein set forth and ~~addressed~~ 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; and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company, Bank or MHC, or result in any violation of 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 BDO USA~~The Company's, ~~LLP 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 financial statements~~ MHC's Charter and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, Bylaws each comply ~~as to form~~ in all material respects with the ~~applicable accounting requirements and related published rules and regulations~~ laws of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shSta

Appears in 1 contract

Sources: Agency Agreement (Sunshine Financial 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 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company~~ MHC-2 Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the ~~Agent,~~ Company in form and substance ~~as reasonably acceptable~~ to the ~~Agent~~effect that: (i) The Company and the MHC have been duly incorporated and are validly existing as corporations under the laws of the United States of America. (eii) ~~A blue sky memorandum~~ 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 federally-chartered savings bank in stock form and is 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 is duly 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-Boston. 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ the ESOP lending subsidiary 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) Each of the Company and the Bank 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 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 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). (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 time the MHC-2 Application, including ~~Agent’s participation~~ the Prospectus contained therein, ~~shall have been furnished prior~~ was approved by the OTS, the MHC-2 Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations except as waived in writing 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 (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 ~~mailing~~ 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 in writing 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 ~~Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state~~ final action of the ~~Agent may rely. The blue sky memorandum will relate to~~ OTS approving the ~~necessity of obtaining or confirming exemptions~~Plan, ~~qualifications~~ the MHC-2 Application or the ~~registration of the Shares under applicable state securities law~~Prospectus. (fxix) ~~At the Closing Date~~To such counsel’s Actual Knowledge, the ~~Agent shall receive~~ 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, the Company and the Bank are in all material respects complying therewith. (xx) To such counsel’s Actual Knowledge, none the MHC, the Company 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 ~~certificate~~ 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 ~~Chief Executive Officer~~ MHC, the Company and the ~~Chief Financial Officer~~ Bank on a consolidated basis; to such counsel’s Actual Knowledge, the execution and delivery of ~~each~~ this Agreement, the incurrence of the ~~Primary Parties~~ 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 ~~form~~ 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 reasonably satisfactory~~ 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 violation of 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 the NASD need be rendered) or order or court order, writ, injunction or decree. (xxi) Except as waived in writing or otherwise approved by the OTS, the Company’s, Bank’s ~~Counsel~~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 “Supervision and Regulation,” “Federal and State Taxation,” (with respect to federal taxation only) “The Offering,” “Restrictions on the Acquisition of United Financial Bancorp, ~~dated as~~ Inc. and United Bank” and “Description of ~~such Closing Date~~Capital Stock of United Financial Bancorp, Inc.,” to the ~~effect that: (i) they have carefully examined~~ 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 — Tax Effects 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 ~~their opinion~~the MHC-2 Application, at the ~~time~~ Registration Statement or the Prospectus ~~became authorized~~ and do not assume any responsibility for ~~final use~~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 Company), nothing has come to their attention that would lead them to believe that the MHC-2 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 respective dates~~ . In giving such opinion, such counsel may rely as to all matters of ~~which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment~~ fact on certificates of officers or supplement to the Prospectus 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, business or prospects directors of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the ~~accounting system~~ MHC and ~~other data prepared~~ the Bank and certificates of public officials. Such counsel’s opinion shall be limited to matters governed by ~~the Mid-Tier Holding Company~~federal laws and, ~~directly from such accounting records,~~ with respect 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 paragraph (subject to rounding). (j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (ic)(1)(iii) of this Section 87, by the ~~“specified date” referred~~ laws of the State of Massachusetts; provided, that counsel may rely upon the opinion of Massachusetts counsel with respect to ~~in clause (i)~~ matters of ~~subsection (i) to be a date specified in the letter required by this subsection (i) which for~~ Massachusetts laws. For purposes of such ~~letter~~ opinion, no proceedings shall ~~not~~ be ~~more than three business days prior~~ deemed to ~~the Closing Date~~ be pending, no order or stop order shall be deemed to be issued, and ~~(ii) stating~~ no action shall be deemed to be instituted unless, in ~~effect that~~each case, ~~on the basis of certain agreed upon procedures (but not an audit in accordance with standards~~ a director or executive officer 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. (k) At the Closing DateCompany, the ~~Holding Company~~ MHC or the Bank 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 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 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) have received a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the such proceedings, order, stop order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) or action. In addition, 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shopinion ma

Appears in 1 contract

Sources: Agency Agreement (United Financial 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 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 ~~Conversion Regulations~~ FRB Regulations, the FRB Commitments and the New Jersey Banking Act (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ FRB or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ Commission, the Holding Company Application and the Conversion ~~Application and the Holding Company~~ Application shall have been approved by the ~~Federal Reserve Board~~ FRB and the New Jersey Application shall have been approved by the 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 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ FRB, the New Jersey 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, 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. (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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~~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 ~~or prospects~~ of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) 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 in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ FRB, the New Jersey Banking Department or any other ~~federal~~ Federal or state authority; and (~~vii~~viii) to the knowledge of the Primary Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ FRB, 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 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 ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from ~~any Governmental Entity~~ the FRB, the 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 ~~in all material respects~~ (which direction, if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Primary Parties, taken as a ~~Material Adverse Effect~~whole; (iii) 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; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the ~~Conversion or Offering and no statute~~Primary Parties, ~~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 Offering~~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 ~~BDO USA,~~ KPMG LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ 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 ~~Holding Company~~ as of December 31, ~~2014, June 30, 2014~~ 2011 and ~~June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013~~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 ~~SEC~~ FRB and any other applicable regulator and the 1933 Act; (ii) stating ~~that~~ 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 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 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-~~Tier Holding Company~~Tier, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company,~~ Bank; or ~~decreases~~ (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 ~~Holding Company and (B) during the period from~~ at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (ih), they have compared with the general accounting records of the Mid-~~Tier Holding Company~~Tier, which are subject to the internal controls of the Mid-~~Tier Holding Company~~Tier, the accounting system and other data prepared by the Mid-~~Tier Holding Company~~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 dated as of 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 ~~BDO USA,~~ 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (kl) 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 ~~Conversion~~ 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 ~~Conversion~~ 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. (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 ~~letters~~ letter from the ~~Federal Reserve Board and any other applicable regulator~~ FRB approving ~~the Conversion Application and~~ the Holding Company ~~Application and authorizing the use of the Prospectus~~Application; (ii) a copy of ~~the order~~ a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission ~~that~~ has declared the Registration Statement effective; (~~iii~~iv) ~~certificates~~ certificate from the ~~Federal Reserve Board~~ New Jersey Department of State evidencing the valid existence of the ~~MHC~~ MHC; (v) certificate from the Delaware Secretary of State evidencing the valid existence and good standing of the Mid-~~Tier Holding Company~~Tier; (ivvi) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (vvii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (~~vii~~ix) a certificate from the ~~Maryland~~ Delaware Secretary of State ~~Department of Assessments and Taxation~~ evidencing the good standing of the Holding Company; (x) evidence of approval of the New Jersey Application by the New Jersey Banking Department; and (~~viii~~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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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 shshall 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 proceedings taken by the Primary Parties in connection w

Appears in 1 contract

Sources: Agency Agreement (Investors 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~~ Rome Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and ~~correct~~ correct, the condition that the Rome 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~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~~ OTS 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, to the knowledge of the ~~Primary~~ Rome 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 Rome Parties~~’ knowledge~~, threatened by the OTS, the Commission, ~~the Federal Reserve Board~~ 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 benefit~~Date, of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇~~▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇~~ Wood LLP ~~may rely on such opinion in rendering its opinion pursuant~~ and/or local counsel acceptable to ~~Section 8(d) of this Agreement~~the Agent, in form and substance ~~as attached hereto as Exhibit C.~~satisfactory to the Agent and counsel for the Agent to the effect that: (di) 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 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) The Bank is a validly existing federal stock savings bank and upon consummation of the Conversion and Reorganization, the Bank will continue to be a validly existing federal 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, 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 and Reorganization 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, based solely on certificates of applicable state licensing agencies, 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 and Reorganization, (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 Rome Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Rome 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 ~~Agent shall have received~~ Registration Statement, including the ~~favorable~~ 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), ~~dated~~ complied as to form in all material respects with the requirements of the ~~Closing Date~~ 1933 Act and ~~addressed~~ 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 New Rome Bancorp and Rome Savings” “Description of Capital Stock of New Rome Bancorp” and “The Conversion and Stock Offering,” to the ~~Agent~~ 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 Rome Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xvi) None of the Rome 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 Rome 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 Rome 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 for purposes of its ~~benefit,~~ own opinion on the opinion(s) of ~~▇▇▇~~▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇~~▇▇▇▇~~▇ ~~LLP~~LLP and/or local counsel, ~~special~~ 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 and the State of New York. In rendering such opinion, such counsel ~~for~~ may rely (A) as to matters involving the ~~Agent~~application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in ~~form and substance as~~ 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 Rome 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 Rome 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 Rome Parties are located. The opinion of such counsel for the Rome Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. Counsel may expressly exclude any opinion as to choice of law, anti-trust matters and may add other qualifications and explanations as are consistent with the Legal Opinion Accord of the American Bar Association. (e2) ~~A blue sky memorandum from~~ The letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood LLP shall also state that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Rome Parties, counsel to the Agent, representatives of the independent public accountants for the Rome 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)), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood 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, 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 ▇▇▇▇▇▇ ▇▇▇▇▇ 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 Rome Parties delivered pursuant hereto or as such counsel may reasonably request. (4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood LLP relating to the ~~Offering~~offering, including Agent’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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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. (ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA, LLP~~Independent Auditors, dated ~~as of~~ the date hereof and addressed to the Agent: , such letter (i) confirming that ~~BDO USA, LLP is a firm~~ Independent Auditors are firms 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 opinion~~ Independent Auditors’ opinions the consolidated financial statements ~~and related notes~~ of the Mid-Tier Holding Company ~~as of December 31, 2014, June 30, 2014 and June 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,~~ 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 ~~SEC and the 1933 Act~~Commission thereunder; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shstatin

Appears in 1 contract

Sources: Agency Agreement (Rome 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 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 ~~Conversion Regulations (except to~~ Reorganization Regulations, the ~~extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~laws of Ohio, 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 ~~Federal Reserve Board or any other applicable regulator~~OTS and the Ohio Division. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion~~ MHC-1/MHC-2 Application and the Holding Company Application ~~shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 or the Bank's knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ OTS, the FDIC, the Ohio Division 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Frost Brown Todd LLC, ~~special counsel for the Primary Parties, which shall also state that~~ ▇▇▇▇▇▇l ▇▇▇~~▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~nsel for the Company, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 Company and the ~~respective dates~~ MHC have 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~~ Statement and the Prospectus. (iii) The Bank is a validly existing Ohio-chartered savings and loan association in mutual form and immediately following the completion of the Reorganization will be a validly existing Ohio-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 Reorganization 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 ~~event has occurred that should have been~~ proceedings for the termination or revocation of such insurance are pending or threatened; The Bank is a "qualified thrift lender" within the meaning of 12 U.S.C. s.1467(a)(m). (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 ~~an amendment or supplement to~~ the Prospectus ~~that 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business caption "Capitalization," and ~~the conditions set forth in this Section 8~~ no Common Shares have been ~~satisfied; (iii) 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; at the time of the 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. 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. Upon the issuance of the Charitable Foundation Shares, good title to the Charitable Foundation 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, 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, 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 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 ~~Primary Parties have~~ 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 MHC-1/MHC-2 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 the issuance of the Charitable Foundation Shares 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 Ohio Application has been approved be the Ohio Division 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. (ix) 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 inspectors of election, by the members of the Bank. (x) 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 issuance of the Shares, the issuance of the Charitable 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 rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be 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 Commission. (xii) At the time the MHC-1/MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the MHC-1/MHC-2 Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization 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). (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 and the 1933 Act Regulations. (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 tot eh Actual Knowledge of such counsel threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein. (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-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. (xvii) The Plan complies in all material respects with all ~~material agreements~~ applicable federal law, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Reorganization Regulations; ~~(v)~~ 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; (vi) no order suspending the Conversion,~~ authority to suspend the 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,~~ instituted or to ~~the knowledge of the Primary Parties,~~ such counsel's Actual Knowledge threatened by the ~~Federal Reserve Board~~ OTS, the Commission, the FDIC, or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan, the MHC-1/MHC-2 Application, the Holding Company Application or the Prospectus. (gxviii) ~~None~~ 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 to such counsel's Actual Knowledge the Company, the MHC and the Bank are in all material respects complying therewith. (xix) Neither the MHC, the Company nor the Bank is in violation of its Charter and Bylaws or its Articles of Incorporation, Constitution 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 ~~Primary Parties shall have sustained~~MHC, ~~since~~ the ~~date~~ 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 ~~latest financial statements included~~ 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 ~~Registration Statement~~creation or imposition of any lien, charge or encumbrance upon any property or assets of the MHC, the ~~General Disclosure Package and Prospectus,~~ Company or the Bank pursuant to any material ~~loss~~ contract, indenture, mortgage, loan agreement, note, lease or ~~interference~~ 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, Constitution 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. (xx) The Company's Charter and Bylaws comply in all material respects with the laws of the United States of America. The MHC's Charter and Bylaws comply in all material respects with the laws of the United States of America. The Bank's Articles of Incorporation, Constitution and Bylaws comply in all material respects with Ohio law. (xxi) The information in the Prospectus under the captions "Regulation," "The Reorganization and Offering," "Restrictions on Acquisition of Cheviot Financial Corp.," "Cheviot Savings Bank Charitable Foundation" and "Description of 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 Reorganization process in the Prospectus under the caption "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 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 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 and Grant Thornton LLP, ▇▇▇▇▇ctively, to the Company, the MHC and the Bank with respect to such matters. (xxii) The Charitable Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business ~~from fire~~as described in the Prospectus; the Charitable Foundation is not a savings and loan holding company within the meaning of 12 C.F.R. Section 574.2(q) as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals In addition, ~~explosion~~such counsel shall state that during the preparation of the MHC-1/MHC-2 Application, ~~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~~ they participated 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shconf

Appears in 1 contract

Sources: Agency Agreement (Cheviot 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~~ Sunshine Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ OCC or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ OCC and the 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, to the knowledge of the ~~Primary~~ Sunshine 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~~ Sunshine Parties’ knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ OCC, the FRB or any other federal or state authority. (c1) 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 ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.B. (d2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Sunshine Parties, counsel to the Agent, representatives of the independent public accountants for the Sunshine Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matter 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(c)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package). (1) 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 Agent, in form and substance as ~~reasonably acceptable~~ attached hereto as Exhibit C. (2) The letter of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance to the ~~Agent~~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 Sunshine Parties, counsel to the Sunshine Parties, representatives of the independent public accountants for the Sunshine Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matter 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(d)(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, the Prospectus or the General Disclosure Package). (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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~~ 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects 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 and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the ~~Primary~~ Sunshine Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the ~~Primary~~ Sunshine Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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~~ Sunshine Parties, threatened by the ~~Federal Reserve Board~~ OCC or any ~~other federal or~~ state authority; and (vii) to the knowledge of the ~~Primary~~ Sunshine Parties, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board~~ OCC or any other applicable regulator 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 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~~ Sunshine Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Sunshine Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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 material outstanding indebtedness; (iv) 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 any of the ~~Primary~~ Sunshine Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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~~ Sunshine Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~Hacker, ~~LLP~~▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~Hacker, ~~LLP~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 financial statements and related notes of the ~~Mid-Tier Holding Company~~ Bank as of December 31, ~~2014, June 30, 2014 and June 30,~~ 2013 and ~~the six months ended~~ December 31, ~~2014~~ 2012 and the fiscal years ~~ended June 30, 2014 and 2013~~then ended, and covered by their opinion 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 SEC and the 1933 Act; (ii) stating ~~that~~ 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 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 Boards of Directors and committees of each of the Sunshine Parties and consultations with officers of the Sunshine Parties 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; or (B) 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 long-term debt of the ~~Mid-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company~~Bank, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company~~ Bank and (BC) during the period from the date of 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 the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the ~~Mid-Tier Holding Company~~Bank; 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Sunshine Parties, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Sunshine Parties, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Sunshine 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~Hacker, ~~LLP~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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~~ Sunshine 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shappraisal

Appears in 1 contract

Sources: Agency Agreement (Sunshine 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 herein contained are, at and as of the commencement of the 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 NJDBI Regulations, the Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ Board, the NJDBI, and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal Reserve Board ~~not later than 5:30 p.m. on~~ and the ~~date of this Agreement~~NJDBI, ~~or with the Agent’s consent at a later time and date; and~~ as 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, 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 ~~Federal Reserve Board~~ NJDBI or any other ~~federal~~ regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or ~~state authority~~contribution, 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 ~~benefit~~benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇▇~~, 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 ~~may rely~~ 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, 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 ~~opinion~~ unaudited financial statements included in ~~rendering~~ 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 ~~pursuant~~ included in the Prospectus and the performance of the procedures referred to ~~Section 8(d~~in clause (ii) of this ~~Agreement~~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 ~~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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum receive a letter from ▇▇▇▇▇ ~~▇▇▇▇▇▇~~ LLP ~~relating~~ dated the Closing Date, addressed to the ~~Offering~~Agent, ~~including Agent’s participation therein~~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 such letter shall not be more than three business days prior to the Closing Date. (f) At or prior to Closing Date, counsel to the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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. (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 Counsel~~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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) 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 or~~issued and, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for ~~that~~ any such purpose ~~are pending or, to the knowledge of the Primary Parties,~~ have been initiated or threatened by the Federal Reserve ~~Board~~ Board, the Commission, the NJDBI or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve Board or ~~any other applicable regulator~~ the NJDBI 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 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 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 Parties ~~considered~~ independently, or the Primary Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 ~~letters~~ letter from the Federal Reserve Board ~~and any other applicable regulator~~ approving ~~the Conversion Application and~~ the Holding Company ~~Application and authorizing~~ Applications including the ~~use~~ establishment of the ~~Prospectus~~Foundation; (ii) a copy of the letter from the NJDBI approving the NJDBI Application; (iii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the ~~FHLB-New York~~ FHLB evidencing the Bank’s ~~membership~~ memberships therein; (vi) a certified copy of each of the Primary Parties’ certificate of incorporation and bylaws, as applicable; (vii) a ~~certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing~~ certified copy of the ~~Holding Company~~Foundations’ certificate of incorporation and bylaws; and (viii) ~~such~~ any other documents ~~and certificates as the~~ that Agent ~~may~~ shall reasonably request. (nl) 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 (~~Exchange, the ~~“NYSE”)~~ NASDAQ, or in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ 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 ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve Board, the NJDBI, or the ~~delivery of the Shares on the terms and~~ FDIC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the ~~Closing Date, counsel~~ provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.

Appears in 1 contract

Sources: Agency Agreement (Blue Foundry 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~~ Sunshine Parties herein are, at and as of the commencement of the 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, 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 ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~Silver, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, L.L.P., special counsel for 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 ▇▇▇▇▇▇~~▇▇▇~~▇ ~~▇▇▇▇▇▇▇▇~~ Spidi & ▇▇▇▇▇~~▇▇▇ LLP~~, PC, special counsel for the Agent, in form and substance as ~~reasonably acceptable to the Agent.~~attached hereto as Exhibit D. (e) A blue sky memorandum from Silver, ▇▇~~▇▇▇~~ ▇▇▇▇▇▇ ~~LLP~~ & Taff, L.L.P. relating to the Offering, 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 Silver, ▇▇~~▇▇▇~~ ▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 Sunshine Parties independently, or of the ~~Primary~~ Sunshine Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Sunshine Parties ~~have~~ complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ OTS or any ~~other federal or~~ state authority; and (~~vii~~viii) to the best knowledge of the ~~Primary~~ Sunshine Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board 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 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~~ Sunshine Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Sunshine Parties shall have received from ~~any Governmental Entity~~ the 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Sunshine Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the Conversion or Offering and 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 OfferingSunshine 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 ~~BDO USA~~Hacker, ~~LLP~~▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~Hacker, ~~LLP~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 Holding Company~~ MHC as of December 31, ~~2014~~2009 and 2008, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the two-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~2009, 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 ~~SEC~~ OTS and the 1933 Act; (ii) stating ~~that~~ 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 MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Sunshine Parties 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) 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 OTS 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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-Tier Holding Company~~Bank, other than normal deposit fluctuations for the ~~Mid~~Bank or in non-~~Tier Holding Company,~~ accrual loans; or ~~decreases~~ (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company and (B) during the period from~~ Bank at the date of such letter as compared with amounts shown in the ~~recent developments financial information~~ latest 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 were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~MHC, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~MHC, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~MHC, 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~Hacker, ~~LLP~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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 ~~Conversion~~ Code of Federal Regulations, Section 563b.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 ~~Conversion~~ 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. (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 letters from the ~~Federal Reserve Board and any other applicable regulator~~ OTS approving the ~~Conversion Application and~~ Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; (iii) a certificate from the Maryland Department of Assessments & Taxation evidencing the good standing of the Company; (iv) certificates from the ~~Federal Reserve Board~~ OTS evidencing the valid existence of the Bank, the MHC and ~~the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank~~Sunshine Financial; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-~~New York~~ Atlanta evidencing the Bank’s membership therein; and (vii~~) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii~~) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, counsel to the Agent shshall 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

Sources: Agency Agreement (Sunshine Financial 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~~ ▇▇▇▇▇▇▇ Penn Parties herein are, at and as of the commencement of the 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 ~~Conversion~~ Reorganization Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Offering imposed upon them by the ~~Federal Reserve Board~~ OTS and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the ~~Primary~~ ▇▇▇▇▇▇▇ 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 ~~Federal Reserve Board~~ 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇ ▇▇, PC, special counsel for the ▇▇▇▇▇▇▇ ~~& ▇~~Penn Parties in form and substance to the effect that: (i) The Company has been duly incorporated and is 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 Registration Statement and Prospectus. (ii) ▇▇▇▇▇▇▇ ~~LLP~~Penn, ~~special counsel for~~ MHC has been duly organized and is validly existing as a corporation under the ~~Agent,~~ laws of the United States with corporate power and authority to conduct its business and own its properties as described in ~~form~~ the Registration Statement and ~~substance as reasonably acceptable to the Agent~~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 ▇~~▇▇▇▇~~ ▇▇▇▇▇▇ ~~LLP relating~~ Penn Parties 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 of the Foundation Shares. The execution and delivery of this Agreement and the consummation of the Offering, including ~~Agent’s participation therein~~the 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~~ ▇~~▇▇▇▇~~ ▇▇▇▇▇▇ ~~LLP shall state~~ Penn Parties; and this Agreement is a valid and binding obligation of the ~~Agent~~ ▇▇▇▇▇▇▇ Penn Parties, enforceable against the ▇▇▇▇▇▇▇ 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) The MHC Notice 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. (viii) Pursuant to the Reorganization 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 the Plan has been duly adopted by the required vote of the directors of the Company, based upon the minutes of the proceedings of the Board of Directors. (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 FINRA (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 Commission. (xi) At the ~~Closing Date~~time the MHC Notice, including the Prospectus contained therein, was approved by the OTS, the ~~Agent shall receive a certificate~~ MHC Notice, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the ~~Chief Executive Officer~~ 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 ~~Chief Financial Officer of each~~ 1933 Act Regulations, and (ii) the Prospectus (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 ~~Primary Parties~~ 1933 Act and the 1933 Act Regulations. (xiii) The terms and provisions of the shares of common stock of the Company conform, in ~~form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date~~all material respects, to the ~~effect that:~~ 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) ~~they have carefully examined~~ asserting the ~~Prospectus and~~invalidity of this Agreement, 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~~ seeking to prevent the ~~respective dates as~~ offer, sale or issuance of the Shares, or (iii) which ~~information is given~~ are required to be disclosed in the Registration ~~Statement, the General Disclosure Package~~ Statement and ~~the~~ Prospectus, ~~no event has occurred that should have been set forth in an amendment or supplement~~ other than those disclosed therein. (xv) Pursuant to the ~~Prospectus that has not been so set forth~~Plan and Offering, ~~including specifically~~none of the ▇▇▇▇▇▇▇ Penn Parties 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, ~~but without limitation,~~ none of the ▇▇▇▇▇▇▇ Penn Parties is in violation of any directive from the OTS to make any material ~~adverse~~ change in the ~~condition~~method of conducting its respective business. (xvii) To such counsel’s Actual Knowledge, ~~financial~~ there are no material contracts, indentures, mortgages, loan agreements, notes, leases or ~~otherwise,~~ other instruments required to be described or referred to in the ~~earnings~~Applications, ~~capital, properties, business~~ the Registration Statement or ~~prospects of~~ the ~~Primary Parties independently,~~ Prospectus or ~~of the Primary Parties considered~~ required to be filed as ~~one enterprise, whether~~ exhibits thereto other than those described or ~~not arising~~ referred to therein or filed as exhibits thereto in the ~~ordinary course of business~~ Applications, the Registration Statement or the Prospectus. The description in the Applications, the Registration Statement and the ~~conditions set forth~~ Prospectus of such documents and exhibits is accurate in ~~this Section 8 have been satisfied;~~ all material respects and fairly presents the information required to be shown. (~~iii~~xviii) Except as waived or otherwise approved by the ~~representations and warranties in Section 4 are true and correct with~~ OTS, the ~~same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied~~ Plan complies in all material respects with all ~~material agreements~~ applicable federal law, rules, regulations, decisions and ~~satisfied all conditions on their part~~ orders including, but not limited to, the Reorganization Regulations; to ~~be performed or satisfied at or prior to the Closing Date~~such counsel’s Actual Knowledge, ~~including the conditions contained in this Section 8; (v)~~ no ~~stop~~ order ~~suspending the effectiveness of the Registration Statement~~ has been ~~initiated or~~issued by the OTS, ~~to the knowledge of the Primary Parties, threatened by~~ the Commission or any state ~~authority; (vi) no order suspending the Conversion,~~ authority to suspend the 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 ~~Federal Reserve Board~~ OTS, the Commission or any other ~~federal or~~ state ~~authority; and (vii)~~ authority and, to ~~the knowledge of the Primary Parties~~such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS approving the ~~Conversion~~Plan, the Applications or the Prospectus. (gxix) ~~None~~ 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 ~~the Primary Parties shall have sustained, since the date of the latest financial statements included~~ their businesses as described 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) ~~none of~~ all such licenses, permits and other governmental authorizations are in full force and effect, and (iii) the ~~Primary~~ ▇▇▇▇▇▇▇ Penn Parties ~~shall have received from 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~~ are in all material respects complying therewith. (~~which direction~~xx) To such counsel’s Actual Knowledge, ~~if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii)~~ none of the ~~Primary~~ ▇▇▇▇▇▇▇ Penn Parties ~~shall have been~~ is in violation of its charter and bylaws, as applicable, 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 contract, indenture, mortgage, loan agreement, note, lease or other instrument ~~relating~~ to ~~any material outstanding indebtedness; (iv) 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 commission~~its property may be bound, ~~board~~ except for such defaults or ~~other administrative agency,~~ violations which would not ~~disclosed in~~ have a material adverse impact on the ~~Prospectus, shall be pending or, to the knowledge~~ financial condition or results of operations of the ~~Primary~~ ▇▇▇▇▇▇▇ Penn Parties; to such counsel’s Actual Knowledge, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 and delivery of this Agreement, the ~~Agent shall receive a letter from BDO USA, LLP, 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 BDO USA, LLP 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 States~~xxi) ~~and stating in effect that in its opinion~~ Except as waived or otherwise approved by the ~~financial statements and related notes~~ OTS, each of the ~~Mid-Tier Holding Company as of December 31, 2014, June 30, 2014~~ ▇▇▇▇▇▇▇ Penn Parties’ charter and ~~June 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,~~ bylaws each comply ~~as to form~~ in all material respects with the ~~applicable accounting requirements and related published rules and regulations~~ laws of the ~~SEC~~ United States of America. (xxii) The information in the Prospectus under the captions “Summary — The Offering” and ~~the 1933 Act; (ii) stating that (A) during the period from the date~~ “Description of Capital Stock,” insofar as they purport to constitute a summary of the ~~recent developments financial information included~~ terms of the 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.,” “~~Recent Developments~~— The contribution of shares to the charitable foundation will dilute your ownership interests and adversely affect net income in fiscal 2008,” ~~section~~ “— 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 ~~Prospectus to a specified date not more than three business days prior~~ 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 ~~date~~ ▇▇▇▇▇▇▇ 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; no approvals are required to contribute the Foundation Shares as described in the Prospectus; the Foundation Shares to be issued to the Foundation in accordance with the 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 ~~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 Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior Foundation will have full legal title to the ~~date of the Prospectus~~Foundation Shares, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to such claims as may be asserted against the ~~internal controls of the Mid~~Foundation by third-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 Noparty claimants. 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shIn add

Appears in 1 contract

Sources: Agency Agreement (William Penn 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~~ MHC, the Company and the Bank herein are, at and as of the commencement of the 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 ~~Conversion~~ Reorganization Regulations ~~(except to the extent waived or otherwise approved by the 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~~ Reorganization imposed upon them by the ~~Federal Reserve Board or~~ SEC, the Commissioner, the FRB and any ~~other applicable regulator~~state securities agency. (b) The Registration Statement shall have been declared effective by the ~~Commission~~ SEC and the ~~Conversion~~ Reorganization Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Commission~~SEC, the ~~Federal Reserve Board~~ Commissioner, or any other ~~federal or state~~ governmental 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.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 ▇▇▇▇▇▇~~▇▇▇~~▇ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ LLP~~Wood, special counsel for the ~~Agent~~MHC, the Company and the Bank, in form and substance ~~as reasonably acceptable~~ to the ~~Agent~~effect that: (i) The Company has been duly incorporated and is validly existing in good standing as a corporation under the laws of the Commonwealth of Massachusetts; the MHC has been duly organized and is validly existing in good standing as a mutual holding company under the laws of the Commonwealth of Massachusetts. (eii) ~~A blue sky memorandum~~ Both of the MHC and the Company have full 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; 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 Bank, considered as one enterprise. (iii) The Bank is 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, 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 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 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 Plans with funds borrowed from ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ 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 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 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. (vi) The MHC, 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 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 ~~Offering~~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 ~~Agent’s participation therein, shall have been furnished prior~~ 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 ~~mailing~~ 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 Registration Statement and the Prospectus and is duly qualified as a foreign corporation to transact business 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 of the Company, the MHC, the Bank and its subsidiaries, considered as one enterprise; the activities of the Subsidiary, as 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 ~~a copy thereof addressed to Agent~~ 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 ~~upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The~~ blue sky ~~memorandum will relate~~ laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the ~~necessity of obtaining or confirming exemptions, qualifications or the registration~~ rules and regulations of the ~~Shares~~ 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 ~~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). (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. (fxiv) ~~At the Closing Date~~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~~ there are no legal or governmental proceedings pending or threatened which are required 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 respective dates as of which information is given be disclosed in the Registration ~~Statement~~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 Reorganization 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 Reorganization Application, the Registration Statement or the Prospectus. The description in the Reorganization Application, the Registration Statement and the ~~Prospectus, no event has occurred that should have been set forth~~ Prospectus of such documents and exhibits is accurate in ~~an amendment or supplement~~ all material respects and fairly presents the information required to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown. (~~iii~~xvi) ~~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; (iv) the Primary Parties have complied~~ The Plan complies in all material respects with all ~~material agreements~~ applicable laws, rules, regulations, decisions and ~~satisfied all conditions on their part to be performed or satisfied at or prior to~~ orders including, but not limited to, the ~~Closing Date, including the conditions contained in this Section 8~~Reorganization Regulations; ~~(v)~~ 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~~ SEC, the Commissioner, the FRB, or any ~~state authority; (vi) no order suspending the Conversion,~~ other governmental authority to suspend the 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~~instituted, or to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, threatened by the ~~Federal Reserve Board~~ SEC, the Commissioner, the FRB, or any other ~~federal or state authority; and (vii)~~ governmental authority and, to ~~the knowledge of the Primary Parties~~such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~Federal Reserve Board~~ Commissioner or ~~any other applicable regulator~~ the FRB 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~~Plan, the ~~General Disclosure Package and Prospectus~~Reorganization Application, ~~any material loss~~ the 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 Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (hxvii) ~~Prior to~~ To such counsel's Actual Knowledge, the MHC, the Company and at the ~~Closing Date:~~ 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 MHC, the Company and the Bank are in all material respects complying therewith. (ixviii) ~~in the reasonable opinion~~ To such counsel's Actual Knowledge, none of the ~~Agent~~MHC, ~~there shall~~ 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 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 Parties considered as one enterprise~~MHC, ~~from~~ the Company and as the Bank on a consolidated basis; the execution and delivery of this Agreement, the incurrence of the ~~latest date 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 ~~Prospectus~~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 ~~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. (iixix) 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 ~~any Governmental Entity any direction (oral~~ the Commissioner, the FRB or ~~written)~~ the FDIC to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 Partiesits respective business. (ixxi) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shThe inform

Appears in 1 contract

Sources: Agency Agreement (Westfield Financial 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~~ Westbury Parties herein are, at and as of the commencement of the 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 Conversion Regulations (except to the extent waived or otherwise approved by the ~~Federal Reserve Board~~ 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 ~~Federal Reserve Board~~ FRB or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ FRB 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OCC, the FRB 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Holding 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as ~~reasonably acceptable to the Agent.~~attached hereto as Exhibit C. (e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ 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 Westbury Parties independently, or of the ~~Primary~~ Westbury Parties considered as one enterprise, whether or not arising in the ordinary course of ~~business and the conditions set forth in this Section 8 have been satisfied~~business; (~~iii~~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; (ivv) the ~~Primary~~ Westbury Parties have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) 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; (vivii) no order suspending the Conversion, the 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 ~~Federal Reserve Board~~ FRB or any ~~other federal or~~ state authority; and (~~vii~~viii) to the knowledge of the ~~Primary~~ Westbury Parties, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board~~ 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 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~~ Westbury Parties considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the ~~Primary~~ Westbury Parties shall have received from 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Westbury Parties taken as a ~~Material Adverse Effect~~whole; (iii) 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 ~~material~~ outstanding indebtedness; (iv) 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 ~~reasonably be expected to have~~ materially and adversely affect the financial condition, results of operations or business of the Westbury Parties taken as a ~~Material Adverse Effect~~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 ~~that~~ 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 ~~BDO USA,~~ ▇▇▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA,~~ 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 Holding Company~~ MHC as of September 30, 2012, December 31, ~~2014, June 30, 2014~~ 2011 and ~~June 30, 2013 and the six months ended~~ December 31, ~~2014~~ 2010, and for the fiscal years ended ~~June~~ September 30, ~~2014~~ 2012, December 31, 2011 and ~~2013~~December 31, 2010, 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 ~~SEC~~ FRB and any other applicable regulator and the 1933 Act; (ii) stating ~~that~~ 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 MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Westbury Parties and consultations with officers of the 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 Commission, the 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 ~~recent developments financial information~~ latest unaudited interim balance sheet 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-Tier Holding Company~~MHC, other than normal deposit fluctuations for the ~~Mid-Tier Holding Company~~MHC, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the ~~Mid-Tier Holding Company~~ MHC and (BC) during the period from the date of the ~~recent developments financial information~~ 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, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the ~~Mid-Tier Holding Company~~MHC; 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Westbury Parties, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Westbury Parties, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Westbury 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO 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 (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (k) 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 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 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 letters from the ~~Federal Reserve Board~~ FRB and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) ~~a copy of the order from~~ confirmation that the Commission ~~that~~ declared the Registration Statement effective; (iii) certificates ~~from the Federal Reserve Board~~ of appropriate government officials evidencing the valid existence of the ~~MHC and~~ MHC, the Mid-Tier Holding Company, the Bank, the Holding Company and the Foundation; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Chicago evidencing the Bank’s membership therein; ~~(vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company;~~ and (~~viii~~vi) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (on) At or prior to the Closing Date, counsel to the Agent shshall 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

Sources: Agency Agreement (Westbury 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 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Form AC and ~~the~~ Holding Company Application shall have been approved by the ~~Federal Reserve Board~~ 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,~~ or to the knowledge of the ~~Primary Parties~~Company or the Bank, 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 and the Bank’s knowledge, threatened by the Commission, the ~~Federal Reserve Board~~ OTS, 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 ▇▇▇▇▇ ~~▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~, P.C., special counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.D. (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~~ A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ LLP~~, ~~special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP~~ P.C. relating to the Offering, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 and the 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 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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary Parties independently, or of~~ Company and the ~~Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business~~ Bank 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 Company and the Bank independently, or of the 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; (ivv) the ~~Primary Parties have~~ Company and the Bank complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date~~, including the conditions contained in this Section 8~~; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the ~~Primary Parties~~Company and the Bank, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the 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~~Company and the Bank, threatened by the ~~Federal Reserve Board~~ OTS or any ~~other federal or~~ state authority; and (~~vii~~viii) to the knowledge of the ~~Primary Parties~~Company and the Bank, no person has sought to obtain ~~regulatory or judicial~~ review of the final action of the ~~Federal Reserve Board or any other applicable regulator~~ OTS 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 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 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 ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) ~~none of~~ neither the ~~Primary Parties~~ Company nor the Bank shall have received from ~~any Governmental Entity~~ the 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 which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Company and the Bank taken as a ~~Material Adverse Effect~~whole; (iii) ~~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 ~~material~~ outstanding indebtedness; (iv) 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~~Company and the Bank, threatened against any of the ~~Primary Parties~~ Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for~~ materially and adversely affect the ~~purpose~~ financial condition, results of ~~enjoining~~ operations or ~~prohibiting the consummation~~ business of the ~~Conversion or Offering~~ Company and ~~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 Offering~~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 laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the ~~Primary Parties~~Company and the Bank. (ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ~~BDO USA~~McGladrey & ▇▇▇▇▇▇, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ~~BDO USA~~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 Holding Company~~ Bank as of December 31, ~~2014~~2008 and 2007, ~~June 30, 2014~~ and ~~June 30, 2013 and~~ for each of the ~~six months~~ years in the three-year period ended December 31, ~~2014 and the years ended June 30, 2014 and 2013~~2008, 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 ~~SEC~~ OTS and the 1933 Act; (ii) stating ~~that~~ 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 Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Company and 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) 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 OTS 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 ~~recent developments~~ latest consolidated financial ~~information~~ statements 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~~non-~~term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company,~~ interest expense or ~~decreases~~ any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total dtotal interest income, net income, non-interest income, provision for loan loss, or net interest income after provision for loan ~~losses~~losses as compared to the prior year period; or (C) there was any increase in borrowings, ~~income before income tax expense~~ non-performing loans, non-performing assets, or ~~net income of~~ special mention loans, or any decrease in loan loss allowance, total assets, or equity, at the ~~Mid-Tier Holding Company~~date specified in such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; 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 (ih), they have compared with the general accounting records of the ~~Mid-Tier Holding Company~~Bank, which are subject to the internal controls of the ~~Mid-Tier Holding Company~~Bank, the accounting system and other data prepared by the ~~Mid-Tier Holding Company~~Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~McGladrey & ▇▇▇▇▇▇, LLP in the letter delivered by it pursuant to subsection (ih) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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 ProspectusDate. (kj) 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~~ Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the ~~Conversion~~ Code of Federal Regulations, Section 563b.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 ~~Conversion~~ 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. (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. (mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the ~~Federal Reserve Board and any other applicable regulator~~ OTS approving the ~~Conversion Application and~~ Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; (iii) ~~certificates~~ a certificate from the ~~Federal Reserve Board~~ OTS evidencing the valid existence of the ~~MHC and the Mid-Tier Holding Company~~Bank; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Dallas evidencing the Bank’s membership therein; ~~(vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company;~~ and (~~viii~~vi) 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 other than temporary trading halts~~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 engagement by the United States in hostilities ~~that~~ 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 is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (om) At or prior to the Closing Date, counsel to the Agent shshall 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 to the Agent as to the statements made therein.

Appears in 1 contract

Sources: Agency Agreement (OmniAmerican 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 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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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~~ The Conversion shall have ~~conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise~~ been approved by the ~~Federal Reserve Board~~ 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 Federal Reserve Board or any other applicable regulator. (b)~~ FDIC. The Registration Statement shall have been declared effective by the ~~Commission and~~ Commission, the ~~Conversion Application and the Holding Company~~ BHC Application shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement~~FRB, ~~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 knowledge~~ 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 Division, the FDIC, the FRB, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal or state authority~~governmental 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 benefit~~Date, of M▇▇▇▇▇▇ ▇▇▇▇▇▇ & A▇▇▇▇▇▇ LLP, and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for the Agent as set forth in Exhibit C hereto. The opinion may be limited to matters governed by the laws of the United States and the Commonwealth of Massachusetts. In rendering such opinion regarding Massachusetts law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary ~~Parties, which~~ Parties shall ~~also~~ state that ~~▇▇▇▇~~it has no reason to believe that the Agent is not justified in relying thereon. (2) The letter of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇~~ Aguggia 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~~ 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~~Prospectus, ~~of ▇▇▇▇~~M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇A▇▇▇▇▇▇ ~~LLP~~LLP participated in conferences with certain officers of and other representatives of the Primary Parties, ~~special~~ counsel ~~for~~ to the Agent, ~~in form~~ representatives of the independent public accounting firm for the Primary Parties and ~~substance as reasonably acceptable~~ 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 ~~Agent.~~ statements contained therein and, although (ewithout limiting the opinions provided pursuant to Section 9(b)(1)) ~~A blue sky memorandum from~~ M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP relating to the Offering, 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 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Chicopee 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~~ Hoyne Parties herein contained are, at and as of the commencement of the 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal Reserve ~~Board~~ and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the Federal Reserve ~~Board not later than 5:30 p.m. on the date of this Agreement~~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, to the knowledge of the ~~Primary~~ 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 Federal Reserve Board~~ or any other ~~federal~~ governmental authority. The Shares and the Foundation Shares shall have been registered for offering and sale or ~~state authority~~contribution, 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 and addressed to the Agent and for its benefit~~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, 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, ~~special counsel for~~ the ~~Primary Parties, which shall also state that ▇▇▇▇▇▇~~consolidated financial statements of H▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ LLP may rely~~ 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 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 ~~opinion~~ unaudited consolidated financial statements included in ~~rendering~~ 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, 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 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 ~~pursuant~~ included in the Prospectus and the performance of the procedures referred to ~~Section 8(d~~in clause (ii) of this ~~Agreement~~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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum receive a letter from ~~▇▇▇▇▇ ▇~~W▇▇▇▇▇ LLP ~~relating~~ dated the Closing Date, addressed to the ~~Offering~~Agent, ~~including Agent’s participation therein~~confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 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. (f) At the Closing Date, counsel to the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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. (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 Counsel~~Hoyne 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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (iii) 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; ; (iv) the ~~Primary~~ Hoyne Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; (vi) no 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 ~~initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been~~ issued 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 Federal ~~Reserve Board~~ Reserve, the Commission, or any other federal or state authority; ~~and~~ and (vii) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ 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 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 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~~ Hoyne Parties ~~considered~~ independently, or the Hoyne Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ receive (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Conversion ~~Application and~~ Application, including the ~~Holding Company Application and authorizing the use~~ establishment of the ~~Prospectus;~~ Foundation, (ii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective; , (iii) ~~certificates~~ a copy of the letter from the Federal Reserve ~~Board evidencing~~ approving the ~~valid existence of the MHC and the Mid-Tier~~ Holding ~~Company;~~ Company Application, (iv) a certificate from the ~~New Jersey Banking Department~~ FHLB-Chicago evidencing ~~the good standing of the Bank;~~ Hoyne Savings’s membership therein, (v) a certificate from the FDIC evidencing ~~the Bank’s~~ Hoyne Savings’ insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; ; (ii) a general moratorium on the operations of ~~commercial banks,~~ 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 ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed~~ enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. (m) Prior to and at the Closing Date, none of the Hoyne Parties will have received from the Federal Reserve, the 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 ~~Offering~~ 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 to counsel for the ~~delivery of~~ Agent shall be deemed a representation and warranty by such Hoyne Party, to the ~~Shares on~~ Agent as to the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~statements made therein. (o) ~~At or~~ A blue sky memorandum from V▇▇▇▇▇ Price P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to Hoyne Bancorp with a copy thereof addressed to Agent or upon which V▇▇▇▇▇ Price 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. (p) At the Closing Date, ~~counsel to~~ the ~~Agent sh~~Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Markets.

Appears in 1 contract

Sources: 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,~~ 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 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 Conversion Regulations ~~(except to the extent waived or otherwise approved by the 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 Federal ~~Reserve Board~~ Reserve, the FDIC, and the Commission or any other ~~applicable regulator~~government authority. (b) The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application and the Holding Company Application~~ Applications shall have been approved by the Federal ~~Reserve Board not later than 5:30 p.m. on~~ Reserve, as applicable, as of the date of this ~~Agreement~~Agreement 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, 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 ~~Commission~~Federal Reserve, the ~~Federal Reserve Board~~ Commission or the FDIC or any other ~~federal~~ regulatory authority. The Shares shall have been registered for offering and sale or ~~state authority~~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 ~~benefit~~benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ~~▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇~~▇▇▇▇ ▇▇▇▇▇▇~~▇▇ & ▇▇~~, 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 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 ~~may rely~~ 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, 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; (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 ~~opinion~~ unaudited financial statements included in ~~rendering~~ 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 ~~pursuant~~ included in the Prospectus and the performance of the procedures referred to ~~Section 8(d~~in clause (ii) of this ~~Agreement~~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 ~~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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum receive a letter from ~~▇▇▇▇▇~~ ▇▇▇▇▇▇ LLP ~~relating~~ dated the Closing Date, addressed to the ~~Offering~~Agent, ~~including Agent’s participation therein~~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 such letter shall not be more than three business days prior to the Closing Date. (f) At or prior to Closing Date, counsel to the 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 ▇▇▇▇▇ ▇▇▇▇▇▇ LLP 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 law~~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 Counsel~~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 use~~effective, 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) there has not been, since the respective dates as of which information is given in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus, ~~no event has occurred that should have been~~ any Material Adverse Effect otherwise than as set forth ~~in an amendment~~ or ~~supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change~~ contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the ~~conditions set forth in this Section 8 have been satisfied;~~ Prospectus; (~~iii~~3) 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; ; (iv4) the Primary Parties have complied in all material respects with all ~~material~~ agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11; (v5) 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 or~~issued and, to ~~the knowledge of the Primary Parties~~their knowledge, ~~threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and~~ no proceedings for ~~that~~ any such purpose ~~are pending or, to the knowledge of the Primary Parties,~~ have been initiated or threatened by the Federal ~~Reserve Board~~ Reserve, the Commission, the FDIC or any other federal or state authority; ~~and~~ and (~~vii~~7) to ~~the knowledge of the Primary Parties~~their knowledge, no person has sought to obtain regulatory or judicial review of the ~~final~~ action of the Federal Reserve ~~Board~~ or ~~any other applicable regulator~~ the FDIC in approving the Applications or to enjoin the Conversion. (gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ Financial LLC, 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. (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, 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 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 Parties ~~considered~~ independently, or the Primary Parties taken as ~~one enterprise~~a whole, from and as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, ~~other than transactions~~ except as referred to ~~or contemplated~~ therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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:~~ parties will have received (i) a copy of the ~~letters~~ letter from the Federal Reserve ~~Board and any other applicable regulator~~ approving the Holding Company Application; (ii) a copy of the letter from the Federal Reserve approving the Conversion ~~Application and the Holding Company Application and authorizing the use of the Prospectus~~Application; (iiiii) a copy of the order from the Commission ~~that declared~~ declaring the Registration Statement effective~~; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company~~, if available; (iv~~) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v~~) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-~~New York~~ Chicago evidencing the Bank’s membership therein; (~~vii~~vi) a certificate from the Secretary of State of the State of Maryland ~~State Department of Assessments and Taxation~~ evidencing the ~~good standing~~ valid existence of the Company; (vii) certificates from the Federal Reserve evidencing the valid existence of the Mid-Tier Holding ~~Company~~Company and the MHC; (viii) a certificate from the Office of the Comptroller of the Currency evidencing the valid existence of the Bank; (ix) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; and (~~viii~~x) ~~such~~ any other documents ~~and certificates as the~~ that Agent ~~may~~ shall reasonably request. (nl) 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; : (i1) a suspension or limitation in trading in securities generally on the New York Stock ~~Exchange (~~Exchange, the ~~“NYSE”)~~ NASDAQ, or in the over-the-counter market, or quotations halted generally on the ~~Nasdaq~~ 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; ; (ii2) a general moratorium on the operations of ~~commercial banks,~~ 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~~3) a material adverse change in the ~~engagement by~~ financial markets in the United States in or elsewhere or any outbreak of hostilities ~~that have resulted in the declaration~~or escalation thereof or other calamity or crisis, ~~on or~~ including, without limitation, terrorist activities 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~~ which, in the reasonable judgment of the Agent, is so material and ~~adverse, in the Agent’s reasonable judgment,~~ adverse as to make it impracticable to market the Shares or ~~inadvisable~~ to ~~proceed with~~ enforce contracts, including subscriptions or purchase orders, for the ~~Offering~~ sale of the Shares. (n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve or the ~~delivery of the Shares on the terms and~~ FDIC any direction (oral or written) to make any material change in the ~~manner contemplated in~~ method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the ~~Registration Statement and the Prospectus~~Agent). (o) ~~At or prior~~ All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the ~~Closing Date, counsel~~ provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.

Appears in 1 contract

Sources: Agency Agreement (1895 Bancorp of Wisconsin, 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 Parties~~ Company and the Bank herein are, at and as of the commencement of the 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 Conversion ~~Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)~~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 ~~Federal Reserve Board or any other applicable regulator~~OTS. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application ~~and the Holding Company Application shall have been~~ approved by the ~~Federal Reserve Board~~ 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, to the knowledge of the Primary Parties,~~ 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 ~~Federal Reserve Board~~ OTS, the 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 Vorys, Sate▇~~▇▇▇▇ ▇▇▇▇▇▇ LLP~~, ~~special counsel for the Primary Parties, which shall also state that ▇▇▇~~▇▇▇▇▇▇▇ ▇▇▇ Peas▇, ▇▇~~▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement~~ecial counsel for 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 Ohio. (ii) ~~since the respective dates as of which information is given in the Registration Statement~~The Company has corporate power and authority to own, ~~the General Disclosure Package~~ lease and ~~the Prospectus, no event has occurred that should have been set forth in an amendment or supplement~~ operate its properties and to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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, 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 1 contract

Sources: Agency Agreement (Home City 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 Parties~~ Company herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the ~~Primary Parties~~ Company 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 Conversion Regulations (except to the extent waived or otherwise approved by the 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 Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission ~~and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board~~ not later than 5:30 p.m. Eastern Time 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, to the knowledge of the Primary Parties,~~ 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 knowledge, threatened by the ~~Commission, the Federal Reserve Board~~ Commission or any other federal or state authority. (cb) 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 Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇and ▇▇▇▇▇ LLP, ~~special~~ counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementCompany, in form and substance as attached hereto as Exhibit C.B. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Such counsel also may assume, with respect to all matters governed by the laws of jurisdictions other than the law of the State of Ohio and the federal law of the United States and the General Corporation Law of the State of Delaware, that such laws are the same as Ohio law. (dc) ~~At the~~ On 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~~Date, of ▇▇▇▇▇~~▇▇▇▇~~▇ ~~▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP~~Price P.C., ~~special~~ counsel for the Agent, in form and substance ~~as reasonably acceptable~~ satisfactory to the Agent. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States, upon the opinions of counsel satisfactory to the Agent. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. (d) Each of the executive officers and directors of the Company which are listed on Exhibit D hereto has executed and delivered the lock-up agreements substantially in the form of Exhibit C hereto. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, 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 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~~ Company in form and substance reasonably satisfactory to the Agent’s ~~Counsel~~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 ~~respective dates as of which information is given in~~ date the ~~Registration Statement, the General Disclosure Package and the Prospectus~~Prospectus became authorized for final use, no event has occurred ~~that~~ which should have been set forth in an amendment or supplement to the Prospectus ~~that~~ 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,~~ properties or business ~~or prospects~~ of the ~~Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business~~ 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 Company independently, or of the Company 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 in all material respects with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the ~~Primary Parties have~~ Company has complied in all material respects with all ~~material~~ agreements and satisfied all conditions on ~~their~~ 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~~, including the conditions contained in this Section 8~~; and (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to best the knowledge of the ~~Primary Parties~~Company, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion. (gf) ~~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 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 is, in the Agent’s reasonable ~~judgment~~ judgment, sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (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 considered as one enterprise, from ~~and~~ that as of the latest ~~date~~ dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) ~~none of~~ the ~~Primary Parties~~ Company shall not have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting ~~their~~ its business with which it has not complied ~~in all material respects~~ (which direction, if any, shall have been disclosed to the Agent) or which materially and ~~which~~ adversely would ~~be reasonably be expected to have~~ affect the financial condition, results of operations or business of the Company and its Subsidiaries taken as a ~~Material Adverse Effect~~whole; (iii) ~~none of~~ the ~~Primary Parties~~ Company 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 ~~material~~ outstanding indebtedness; (iv) 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 Parties~~Company, threatened against ~~any of~~ the ~~Primary Parties~~ Company or affecting any of ~~their~~ its properties wherein an unfavorable decision, ruling or finding would ~~reasonably be expected to have~~ materially and adversely affect the financial condition, results of operations or business of the Company and its Subsidiaries taken as a ~~Material Adverse Effect~~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 ~~that~~ which prohibits or makes illegal consummation of the ~~Conversion or~~ Offering; and (vi) each of the Series B Shares, the Shares and the Common Shares issuable upon conversion of the Series B 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~~Company. (ih) ~~Concurrently with~~ At the time of the execution of this Agreement, the Agent shall ~~receive a letter~~ have received from ~~BDO USA~~S.R. ▇▇▇▇▇▇▇▇▇, ~~LLP~~▇.▇., ~~dated as of~~ the ~~date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of~~ current independent registered public ~~accountants within~~ accounting firm for the ~~applicable rules~~ Company, a letter dated such date, in form and substance satisfactory to the Agent containing statements and information of the ~~Public Company Accounting Oversight Board (United States) and stating~~ type ordinarily included in ~~effect that in its opinion~~ accountants’ “comfort letters” to underwriters with respect to the financial statements and ~~related notes of~~ certain financial information contained in the ~~Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013~~ Registration Statement 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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). (ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, ~~(i)~~ confirming the statements made by ~~BDO USA~~S.R. ▇▇▇▇▇▇▇▇▇, ~~LLP~~ ▇.▇. in the letter delivered by it pursuant to subsection (ih) of this Section 8~~, the “specified date” referred to in clause~~ . (ij) ~~of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter~~ FINRA shall have confirmed that it has not ~~be more than three business days prior~~ raised any objection with respect to the ~~Closing Date~~ fairness and ~~(ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards~~ reasonableness of the ~~Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100~~underwriting terms and arrangements, 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 Prospectusif required. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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) any domestic or international event or act or occurrence has materially disrupted the United States securities market such as to make it, in the Agent’s reasonable opinion, impracticable or inadvisable to proceed with the Offering; (iii) 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~~ 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 other than temporary trading halts~~authority; (iiiii) a general moratorium on the operations of commercial ~~banks~~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, or a moratorium in foreign exchange trading by major international banks or persons has been declared; (~~iii~~iv) the engagement by the United States in major hostilities ~~that have resulted in~~ or escalation thereof or the declaration, on or after the date hereof, of a national emergency or ~~war~~ war, or (v) a material decline in the price of equity or debt securities, if the effect of such declaration or ~~decline is so material and adverse~~decline, in the Agent’s reasonable judgment, ~~to make~~ 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. (ol) At or prior to the Closing Date, counsel to the Agent shshall 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 in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel. (m) 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 Company and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company to the Agent as to the statements made therein.

Appears in 1 contract

Sources: Agency Agreement (First Citizens Banc Corp /Oh)

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 Offering and at and as of the Closing Date, true and ~~correct in all material respects~~correct, 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~~ The Charter Conversion ~~in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise~~ has been approved by the 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 Federal Reserve Board or any other applicable regulator. (b) OTS. The Registration Statement shall have been declared effective by the Commission and the ~~Conversion Application~~ Prospectus and Proxy Statement contained in the ~~Holding Company Application~~ MHC-1/MHC-2 shall have been approved by the ~~Federal Reserve Board not later than 5:30 p.m. on~~ OTS for mailing prior to the ~~date~~ commencement of ~~this Agreement~~the Offering, ~~or with~~ the ~~Agent’s consent at a later time~~ Holding Company Application (including the Merger Application) shall have been approved 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 knowledge~~ 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 OTS, the Commission, ~~the Federal Reserve Board~~ or any other ~~federal or state authority~~governmental 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 benefit~~Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for the Agent to the effect that: (i) Upon consummation of the Reorganization, the Holding Company will be a corporation duly organized and validly existing under the federal laws of the United States of America, 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 on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. (ii) The Bank is a duly organized and validly existing New York chartered mutual savings and loan association and following the Charter Conversion will be a duly organized and validly existing federally chartered mutual savings bank and immediately following completion of the Reorganization will be a validly existing federally chartered savings bank in stock form with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the OTS; the issuance and sale of the Capital Stock of the Bank 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 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 Bank described in the Prospectus are permitted under federal law to a federally chartered savings bank. To the best of such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, all such licenses, permits and other governmental authorization are in full force and effect, and the Holding Company and the Bank are complying therewith in all material respects. (iv) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel’s knowledge no proceedings for the termination or revocation of such insurance are pending or threatened. (v) Upon consummation of the Reorganization, the MHC will be duly organized and 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. (vi) The Charitable Foundation has been duly authorized and incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; no approvals are required to establish the Charitable Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those imposed by the OTS. (vii) Upon consummation of the Reorganization, (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 the incorporation of the Holding Company); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering and the Charitable Shares issued to the Charitable Foundation will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration (or contributed to the Charitable Foundation as it relates to the Charitable Shares) calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the shares of Common Stock and the Charitable Shares are not subject to preemptive rights under the charter or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan. (viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies). (ix) The Plan has been duly adopted by the board of directors of the Bank and by the depositors of the Bank in the manner required by the Conversion Regulations and the Bank’s charter and bylaws. (x) The Reorganization, including the Charter 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 OTS or any other governmental agency, if any, were complied with by the Bank in all material respects or appropriate waivers were obtained and all notice and waiting periods were satisfied, waived or elapsed. (xi) The OTS Applications have been approved by the OTS and the Prospectus and Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such OTS 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. (xii) The Purchase by the Holding Company of all of the issued and outstanding Capital Stock of the Bank has been authorized by the OTS and no action has been taken, or to such counsel’s knowledge, is pending or threatened, to revoke any such authorization or approval. (xiii) 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 such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened. (xiv) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption “Summary - Tax Consequences of the Offering” and “Taxation.” The information in the Prospectus under the caption “Summary - Tax Consequences of the Offering” and “Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel 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 forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form. (xvi) At the time the OTS Applications were approved, the OTS Applications (as amended or supplemented) including the Prospectus and Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations and Charter Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived 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 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 approving the OTS Applications. (xvii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder. (xviii) 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. (xix) The information in the Prospectus under the captions “Regulation,” “Taxation,” “Restrictions on Acquisition of Lake Shore Bancorp and Lake Shore Savings,” “Description of Lake Shore Bancorp Capital Stock” and “The Reorganization and Offering,” to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion). (xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxi) The Bank has duly adopted a federal stock charter and bylaws effective upon consummation of the Reorganization and none of the Primary Parties is in violation of its charter or its bylaws or, to such counsel’s knowledge, any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a material adverse effect on the financial condition of the Primary Parties considered as one enterprise, or on the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the charter or the bylaws of any of the Primary Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. The opinion may be limited to matters governed by the laws of the United States and the States of New Jersey and New York. In rendering such opinion regarding New York and New Jersey law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary ~~Parties, which~~ Parties shall ~~also~~ state that it has no reason to believe that the Agent is not justified in relying thereon. (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 accounting firm for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 9(b)(1)) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ 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 the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 Offering, 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 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 respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus 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, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) 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; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) 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; (vi) no order suspending the Conversion, the 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 Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the 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 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 and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from 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) and which would be reasonably be expected to have a Material Adverse Effect; (iii) 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; (iv) 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 any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (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 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 BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, 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 financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 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, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) 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 long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (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 business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier 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 (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier 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) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO 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 (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date 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. (k) 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 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 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 letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) 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 by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement 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 shP.C.,

Appears in 1 contract

Sources: Agency Agreement (Lake Shore Bancorp, Inc.)

Common use of Conditions to the Agent’s Obligations Clause in Contracts