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

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application, Holding Company Application and the Merger Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of 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 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which 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 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) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇▇ Peabody LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ 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 and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application, Merger Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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,~~ rules and 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~~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. (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~~ 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. (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~~ 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,~~ Application and the Holding Company ~~Application and the Merger~~ Application have been approved by the ~~OTS~~ 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 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~~ opinion rendered by such counsel and ~~Gough, Shanahan,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ PLLP~~ PLLC to the Primary Parties with respect to such matters. (xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ~~Applications~~Applications filed. (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 ~~Eagle Bancorp~~Charter Financial Corporation” “Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~Charter Financial Corporation,” “Description of Capital Stock of ~~Eagle Bancorp Montana, Inc.~~ Charter Financial Corporation 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~~ 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 ~~certificate~~ 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 ~~Delaware~~ Georgia and ~~Montana~~Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, ▇▇▇▇▇▇▇▇ ~~Peabody LLP~~ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 Pack~~

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇Luse Lehman Gorman Pomerenk & Schick, and/or local cou▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ~~LLP and/or local counsel acceptable to the Agent~~▇▇ ▇▇▇ ▇▇▇▇t, ~~in form~~ ▇▇ ▇▇▇m 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~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Montana~~ Delaware and in each other jurisdiction in which the conduct of its business requires such ~~qualification,~~ qualification and except where the failure to qualify would ~~not~~ have a Material Adverse Effect. (ii) ~~The~~ On the date hereof, 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~~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; ~~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. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage. (iii) The 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,~~ MHC and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by for savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental ~~authorizations~~ authorization are in full force and effect, and to the best of such counsel’s 's knowledge the Mid-Tier Holding Company and the Bank ~~are complying~~ comply therewith in all material respects. (viiv) ~~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 to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~vii~~v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the ~~Offer Shares~~ shares to be subscribed for in the ~~Offering~~ 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 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 charter, certificate of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or or, under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (~~viii~~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 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 as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ ' rights generally, or the rights of creditors of savings ~~institutions~~ banks or financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and (~~including~~ 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 ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (ixvii) 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~~ MHC in the manner required by the Conversion Regulations and the ~~certificate of incorporation, charters~~ MHC's charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (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. (xiviii) The Conversion ~~Application,~~ Application and 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,~~ 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. (xiiiix) The Registration Statement has become effective under the 1933 ~~Act~~Act and to such counsel's knowledge, ~~and~~ no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvx) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvi~~xi) At A the time the ~~Applications were approved and as of the Closing Date~~Conversion Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement~~ 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 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xvii~~xii) At the time that the Registration Statement became effective and as of the Closing ~~Date,~~ 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~~rules and regulations promulgated thereunder. (~~xviii~~xiii) There are no legal or governmental proceedings pending, or, to such counsel’s '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~~xiv) 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~~Wayne Savings Bancshares, Inc.,~~” “~~" "Description of ~~Capital Stock~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇ of ~~Eagle Bancorp Montana~~Wayne Savings Bancshares, ~~Inc. Following the Conversion~~Inc.,” " and “"The ~~Conversion and Offering~~Convers▇▇▇,~~” 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. (xxxv) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xvi) None of the Primary Parties is in violation of its ~~certificate~~ Certificate of ~~incorporation~~ Incorporation or its charter, as the case may be, or its bylaws or, to the best of such counsel’s '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~~ 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 '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~~Statement or otherwise known by such counsel, which violation would have a Material Adverse Effect. The Agent's counsel may rely for purposes of its own opinion the opinion(s) of Luse Lehman Gorman Pomerenk & Schick and/or local counsel, whose opin▇▇▇(▇) ▇▇▇▇l ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ori▇▇ ▇▇▇h reliance. The opinion may be limited to matters governed by the laws of the United States and the ~~States~~ corporate laws of the State of Delaware ~~and Montana~~and, in the case of local counsel, the State of Ohio. 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. In rendering such opinion, all statements contained therein "to our knowledge" or "to our attention" means the actual knowledge, following reasonable investigation, of the attorneys who have worked on the transactions contemplated herein. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of Luse Lehman Gorman Pomerenk & Schick shall also state ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP in form and substance to the effect that during the preparation~~ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ of ~~the Registration~~ ▇▇▇ ▇egistration Statement and the Prospectus, Luse Lehman Gorman Pomerenk & Schick participated in c▇▇▇▇▇▇▇▇▇▇ w▇▇▇ ▇▇▇▇▇▇▇ ~~LLP participated in conferences with certain officers~~ ▇▇▇icers 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)), ▇Luse Lehman Gorman Pomerenk & Schick has not independe▇▇▇▇ ▇▇▇▇▇▇e▇ ~~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~~ Luse Lehman Gorman Pomerenk & Schick that caused Luse ▇▇▇▇▇▇ ▇▇▇▇a▇ ▇▇▇▇▇▇▇▇ ~~LLP to believe~~ & ▇▇hic▇ ▇▇ ▇elieve that ~~the Registration Statement at the time~~ t▇▇ ▇▇▇▇▇▇▇▇t▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇t t▇▇ ▇▇▇e 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 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 Klehr, Ha▇▇▇▇▇n, Harvey, Branzburg & Ellers LLP, counsel for the Agent, ▇▇▇▇ re▇▇▇▇▇ ▇▇ suc▇ ▇▇▇▇ers 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. (4) A Blue Sky Memorandum from Luse Lehman Gorman Pomerenk & Schick and/or local coun▇▇▇ ▇▇▇▇▇▇▇g ▇▇ ▇▇▇ ▇▇▇▇▇▇▇g, including Agent's participation therein, and should be furnished to Agent with a copy thereof addressed to Agent or upon which Luse Lehman Gorman Pomerenk & Schick and/or local coun▇▇▇ ▇▇▇▇▇ ▇tate Agent ▇▇▇ ▇ely. ▇▇▇ Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the common stock under applicable state securities law. (c) Concurrently with the execution of this Agreement, the Agent shall receive a letter or from Grant Thornton LLP, dated the date hereof and addressed to the Agent, ▇▇▇▇ ▇▇▇▇▇▇ (i) confirming that Grant Thornton LLP is a firm of independent public accountants within ▇▇▇ ▇▇▇▇▇▇▇ ▇f the ~~General Disclosure Pack~~1933 Act and the regulations promulgated thereunder, and stating in effect that in Grant Thornton LLP's opinion the financial statements of the Mid-Tier ▇▇▇▇▇▇▇ ▇▇▇▇▇ny 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 interim financial statements of the Mid-Tier Holding Company prepared by the Mid

Appears in 1 contract

Sources: Agency Agreement (Wayne Savings Bancshares Inc /De/)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS~~Federal Reserve, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Federal Reserve, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ~~▇▇▇▇▇~~ Elias, Matz, ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇▇, L.L.P. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the ~~State~~ Commonwealth of ~~Delaware~~Pennsylvania, 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~~ Pennsylvania 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~~OCC, the FDIC and the Federal Reserve; 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, with respect to the Holding Company by the laws of the Commonwealth of Pennsylvania, and with respect to the Bank by the laws of the United States. 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 to such counsel’s knowledge 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 good standing the FHLB of ~~Seattle~~Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in 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~~ 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~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (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~~ 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~~ Federal Reserve, the Commission, the OCC, 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~~Application (including the Plan, ~~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~~ Statement) and the Holding Company Application have been ~~authorized for use~~ approved by the ~~OTS~~Federal Reserve, 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~~ acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve, 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 – Federal and State Income Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Tax Aspects.” The information in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Tax Aspects” has been reviewed by such counsel and fairly describes ~~such~~ the opinions rendered by such counsel and ~~Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP~~ ParenteBeard LLC 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~~complies with all statutory requirements. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, 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)Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ Federal Reserve in approving the ~~Applications~~Applications filed with the Federal Reserve. (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~~ The Conversion and ~~State Taxation~~Offering - Tax Aspects” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of ~~Eagle~~ Malvern Bancorp-Federal,” [to be added] “Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~Malvern Bancorp-New,” “Description of our Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion~~Stock,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xx) None of the Primary Parties 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~~ 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 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~~ States, the State of New York and the ~~States~~ Commonwealth of ~~Delaware and Montana~~Pennsylvania. 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 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 ~~shall~~ state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of Elias, Matz, ▇▇▇▇▇▇▇ ~~Peabody LLP~~ & ▇▇▇▇▇▇▇, L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ~~▇▇▇▇▇~~ Elias, Matz, ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇▇, L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants 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)), ~~▇▇▇▇▇~~ Elias, Matz, ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ 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 Packf

Appears in 1 contract

Sources: Agency Agreement (Malvern Bancorp, Inc.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the ~~Conversion~~ Offering are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission, the Conversion Application, Holding Company Application~~ Commission and the ~~Merger~~ Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the ~~Conversion~~ Offering shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a federally-chartered stock corporation duly organized and validly existing ~~and in good standing~~ under the laws of the ~~State of Delaware~~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 ~~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~~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,~~ rules and regulations ~~and practices~~ of the OTS; ~~and at the Closing Date, the issuance and sale~~ all of the ~~capital stock~~ outstanding Common 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 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 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,~~ 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 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~~ Company, the MHC and the Bank are complying therewith in all material respects. (viv) The Bank is a member of the FHLB of ~~Seattle~~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. (~~vii~~vi) ~~Upon consummation of the Conversion, (a) the authorized, issued and outstanding~~ The authorized capital stock of the Holding Company ~~will be within the range set forth in the Prospectus under the caption “Capitalization,” and no~~ consists of ______________ shares of Common Stock ~~have been or will be issued~~ and ~~outstanding prior to~~ __________ shares of Preferred Stock; at the Closing ~~Date (except for~~ Date, the shares ~~issued upon incorporation of~~ contributed by the MHC to the Holding Company ~~to facilitate the Conversion); (b) the Offer Shares to be subscribed~~ for ~~in the Offering~~ issuance will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; ~~(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~~ 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. (~~viii~~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). (ixviii) 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~~ OTS 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. (xix) 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~~ Offering imposed by the ~~OTS~~ 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. (xix) The ~~Conversion Application, the Holding Company~~ Application ~~and the Merger Application have~~ has been approved by the ~~OTS and the Prospectus, the Voting Members’ Proxy Statement~~OTS, and the ~~Stockholders’ Proxy Statement have~~ 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, the issuance of the Exchange Shares,~~ Shares and the consummation of the ~~Conversion~~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. (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. (xiiixi) 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~~xii) The material tax consequences of the ~~Conversion~~ 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 ~~opinions~~ opinion rendered by such counsel and ~~Gough, Shanahan,~~ ▇▇▇▇▇ ▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ PLLP~~ PLLC to the Primary Parties with respect to such matters. (xvxiii) 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~~xiv) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented~~), the Voting Members’ Proxy Statement (as amended or supplemented~~) ~~and the Stockholders’ Proxy Statement (as amended or supplemented),~~ complied as to form in all material respects with the requirements of the ~~Conversion~~ OTS Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ~~Applications~~Application filed. (~~xvii~~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. (~~xviii~~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 ~~Conversion~~ Offering or the offer, sale or issuance of the Shares. (~~xix~~xvii) 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 Our Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion~~Stock,” and “The ~~Conversion and~~ Stock Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxxviii) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xix) None of the Primary Parties is in violation of its ~~certificate~~ 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 ~~certificate~~ 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 ~~Delaware and Montana~~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 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 ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, ▇▇▇▇▇▇▇▇ ~~Peabody LLP~~ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~Pack~~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 Silver, ▇▇▇▇▇▇▇▇ & Taff, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. (4) The letter of Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the 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)), Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. that caused Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the 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 nec

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp/Ga)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS~~Federal Reserve, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Federal Reserve, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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~~Ohio-chartered ~~stock~~ savings ~~bank~~and loan association, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~federally~~Ohio-chartered ~~stock~~ savings ~~bank~~and loan association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the ~~OTS~~FDIC and the Federal Reserve, and Ohio law and the rules, regulations and practices of the Ohio Department of Financial Institutions; 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, with respect to the Holding Company by the laws of the State of Maryland, and with respect to the Bank by the laws of the State of Ohio. 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~~Cincinnati. 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~~ 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~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (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~~ 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~~ Federal Reserve, 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,~~ Application and the Holding Company ~~Application and the Merger~~ Application have been approved by the ~~OTS~~ Federal Reserve and the Prospectus, the ~~Voting~~ Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the ~~OTS~~Federal Reserve, 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~~ acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve, 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~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes ~~such~~ the opinions rendered by such counsel and ~~Gough~~Clark, ~~Shanahan~~Schaefer, ▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ PLLP~~ Co. 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~~complies with all statutory requirements. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, 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)Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ Federal Reserve in approving the ~~Applications~~Applications filed with the Federal Reserve. (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~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of ~~Eagle Bancorp~~Cheviot-Federal,” “Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~Cheviot-State,” “Description of Capital Stock of ~~Eagle Bancorp Montana, Inc.~~ New Cheviot 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~~ 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 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~~ New York, Ohio and ~~Montana~~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 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 ~~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 ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 1 contract

Sources: Agency Agreement (Cheviot Financial Corp.)

Conditions to the Agent’s Obligations. The Agent's obligations of hereunder are subject, to the ~~Agent hereunder and~~ extent not waived in writing by the ~~occurrence of the Closing and the Conversion are subject~~ Agent, to the condition that all representations and warranties of the ~~Primary Parties~~ Company and the Association herein ~~contained~~ are, at and as of the commencement of the Offering and at and as of the Closing Date, true and ~~correct~~correct in all material respects, the condition that the ~~Primary Parties~~ Company and the Association shall have performed all of their obligations hereunder to be performed on or before such ~~dates~~ dates, and to the following further conditions: (a) At the Closing Date, the Company and the Association shall have conducted the Conversion in all material respects accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS, the FDIC, the Commission and any state securities agency. (b) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application, Holding Company~~ Application ~~and the Merger Application shall have been~~ approved by the OTS, and the Holding Company Application approved by the OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order ~~or other action~~ suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefor~~ therefore initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the ~~Commission~~ Commission, or any state authority and no order or other action suspending the authorization ~~for use~~ of the Prospectus or the consummation of the Conversion shall have been ~~issued,~~ issued or proceedings ~~therefor~~ therefore initiated or, to the ~~knowledge of~~ Company's and the ~~Primary Parties~~Association's knowledge, threatened by the ~~OTS~~Commission, the ~~Commission~~ OTS or any other ~~governmental body~~federal or state authority. (bc) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing ~~Date~~Date and addressed to the Agent for their benefit, of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ~~LLP and/or local~~ & ▇▇▇▇, L.L.P., counsel ~~acceptable to~~ for the ~~Agent~~Company and the Association, in form and substance ~~satisfactory to the Agent and counsel for the Agent~~ to the effect that: (i) The ~~Holding~~ Company has been duly incorporated and is ~~a corporation duly organized and~~ validly existing and in good standing under the laws of the State of ~~Delaware, with~~ Delaware and has corporate power and authority to ~~own~~ own, lease and operate its properties and to conduct its business as described in the ~~Prospectus~~ Registration Statement and the Prospectus; and the Company is ~~duly~~ qualified to ~~transact~~ do business ~~and is~~ as a foreign corporation 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~~Ohio. (ii) The ~~Bank~~ Association is a ~~duly organized and~~ validly existing ~~federally-chartered stock~~ federal savings ~~bank~~bank in the mutual form of organization under the laws of the United States of America and, ~~and~~ upon the consummation of the Conversion, ~~the Bank will continue to~~ shall be a validly existing ~~federally-chartered stock~~ federal savings ~~bank, with full power and authority to own its properties and to conduct its business as described~~ bank 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 form 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 organization under the laws of the United States, in both instances with full corporate power and authority to ~~own its properties and to~~ conduct its business and own its property as described in the ~~Prospectus~~ Registration Statement 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 Prospectus; and ~~validly existing under the laws~~ upon consummation of the ~~United States~~Conversion, 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 all of the ~~Mid-Tier Holding Company, the MHC, the Holding Company,~~ issued and ~~the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law. To such counsel’s knowledge, each~~ outstanding capital stock of the ~~MHC~~Association shall be duly authorized and, ~~the Mid~~upon payment therefor, shall be validly issued, fully paid and non-~~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~~assessable, and all such ~~licenses~~capital stock shall be owned of record and, ~~permits and other governmental authorizations are in full force and effect, and~~ to such counsel~~’s knowledge~~ 's knowledge, shall be owned beneficially by the ~~Mid-Tier Holding~~ Company free and ~~the Bank are complying therewith in all material respects~~clear of any liens, encumbrances or claims. (viiii) The ~~Bank~~ Association is a member of the ~~FHLB~~ FHLB-Cincinnati; the deposit accounts of ~~Seattle. The Bank is an~~ the Association are insured ~~depository institution~~ by the FDIC under the ~~provisions of~~ SAIF up to the ~~Federal Deposit Insurance Act~~maximum amount allowed under law; and, ~~as amended~~to such counsel's knowledge, ~~and~~ no proceedings for the termination or revocation of ~~the federal deposit~~ such membership or insurance ~~of the Bank~~ are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~vii~~iv) Upon consummation of the Conversion, ~~(a)~~ the authorized, issued and outstanding capital stock of the ~~Holding~~ Company ~~will~~ shall 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 ~~or will be~~ issued ~~and outstanding~~ prior to the Closing ~~Date (except for the shares issued~~ Date; upon ~~incorporation~~ consummation of the ~~Holding Company to facilitate~~ Conversion, the ~~Conversion); (b) the Offer~~ Shares ~~to be~~ subscribed for in pursuant to the Offering ~~will~~ have been duly and validly authorized for ~~issuance~~issuanc and, ~~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~~Plan and the Prospectus, ~~will~~ shall be duly and validly issued, fully paid and ~~nonassessable~~non-assessable; ~~(c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized~~ except for ~~issuance, and when issued and delivered by the Holding Company~~ subscription rights granted pursuant to the Plan, ~~will be fully paid and nonassessable; and (d)~~ the issuance of the Shares is not subject to preemptive ~~rights under~~ rights; the ~~certificate of incorporation or bylaws~~ terms and provisions of the Shares conform to the description thereof contained in the Prospectus; and the form of certificate used to evidence the Common Stock complies with applicable law. To such counsel's 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. (v) The Conversion Application and the Holding ~~Company~~Company Application have been approved by the OTS and the Prospectus and the proxy statement of the Association has been authorized for use by the OTS; and no action is pending or, ~~or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known~~ to such counsel's knowledge, ~~except for the subscription rights under the Plan~~threatened to revoke any such authorizations or approvals. (~~viii~~vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary ~~corporate~~ action on the part of the ~~Primary Parties~~Company and the Association; and this Agreement ~~constitutes~~ is a ~~valid, legal~~ valid and binding obligation of ~~each of~~ the ~~Primary Parties~~Company and the Association, enforceable against the Company and the Association in accordance with its terms, except to as the ~~extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such~~ enforceability thereof may be limited (a) by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ ' rights ~~generally,~~ generally or the rights of creditors of savings institutions ~~insured~~ and their holding companies, (b) by ~~the FDIC~~ general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, (~~including~~ c) by laws ~~and judicial decisions~~ relating to the ~~rights~~ safety and soundness of insured depository institutions or (d) by applicable law or public policy with respect to the indemnification and contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the ~~contracting parties to equitable remedies)~~Federal Reserve Act. (ixvii) The execution and delivery of this Agreement and the incurrence and performance of the obligations set forth herein by the Company and the Association do not (a) result in any violation of any applicable law or regulation (except that no opinion need be rendered with respect to the Blue Sky Laws of various jurisdictions), (b) conflict with or violate the certificate of incorporation and bylaws of the Company or the charter and bylaws of the Association in mutual or stock form, or (c) to such counsel's knowledge, constitute a breach of, or default under (or an event which, with notice or lapse of time or both, would constitute a default under), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Association or the Company pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Association is subject that, individually or in the aggregate would have a material adverse effect on the financial condition, results of operations or business of the Company and the Association. (viii) The Plan has been duly adopted by the ~~Board of Directors~~ vote of the ~~MHC,~~ directors of 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~~ Association as required by the Conversion Regulations ~~and~~ and, based upon the certificate of ~~incorporation~~the inspectors of election, ~~charters and bylaws of each~~ approved by the eligible voting members 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~~ Association in accordance with the ~~Plan~~ Conversion Regulations and ~~all applicable laws, including statutes, regulations, decisions~~ the Association's charter 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 replacedbylaws. (xiix) 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 Subject to the satisfaction of ~~any~~ the conditions ~~set forth in such approvals~~to the OTS approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any ~~federal or state regulatory agency, public board or body~~ governmental agency 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,~~ Shares and the consummation of the Conversion, except as may be required under the ~~state securities or “blue sky” laws~~ Blue Sky Laws of various jurisdictions or the rules and regulations of the NASD (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. (xiiix) The Registration Statement has ~~become~~ been declared effective under the 1933 ~~Act,~~ Act and no stop order suspending the effectiveness ~~of the Registration Statement~~ has been issued or proceedings ~~for that purpose have been instituted~~ therefor initiated or, to such counsel’s '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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvixi) At the time the ~~Applications were~~ Conversion Application, including the Prospectus contained therein, was approved ~~and as of~~ by the ~~Closing Date~~OTS, the ~~Applications~~ Conversion Application, including the Prospectus contained therein (~~as amended or supplemented)~~other than the financial statements, the ~~Prospectus (~~notes thereto, financial tables, and other financial, statistical and appraisal data included therein, as ~~amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented~~to which no opinion need be rendered), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ApplicationsRegulations. (~~xvii~~xii) At the time that the Registration Statement became ~~effective and as of the Closing Date~~effective, the Registration Statement, including the Prospectus (~~as amended or supplemented) (~~other than the financial statements, the notes ~~to financial statements~~thereto, financial ~~tables or other financial~~ tables, financial, statistical and ~~statistical~~ appraisal data included ~~therein and the appraisal valuation and the business plan~~ therein, as to which ~~counsel~~ no opinion need ~~express no opinion),~~ be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~xviii~~xiii) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings ~~pending~~pending or threatened against the Company or the Association or principals of the Company or the Association that are required to be disclosed in the Registration Statement and the Prospectus other than those disclosed therein (xiv) To such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits to the Registration Statement or the Conversion Application other than those described or referred to therein or filed as exhibits thereto; the descriptions in the Conversion Application, the -19- Registration Statement and the Prospectus of the contracts, indentures, mortgages, loan agreements, notes, leases or other instruments filed as exhibits thereto are accurate in all material respects and fairly present the information required to be shown. (xv) The Plan complies with the HOLA and the Conversion Regulations; no order has been issued by the OTS, the Commission or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or, to such counsel’s 's knowledge, ~~threatened (i) asserting~~ threatened; and, to such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the ~~invalidity~~ final action of ~~this Agreement or (ii) seeking to prevent~~ the OTS approving the Plan, the Conversion Application, th Holding Company Application or the ~~offer~~Prospectus. (xvi) To such counsel's knowledge, ~~sale~~ the Company and the Association have obtained all licenses, permits and other governmental authorizations currently required for the conduct of their respective businesses as described in the Registration Statement and Prospectus, except for licenses, approvals or ~~issuance~~ authorizations the failure of which to have would not result in a material adverse change in the financial condition, results of operation or the business of the ~~Shares~~Company an the Association, taken as a whole, and, to such counsel's knowledge, all such licenses, permits and other governmental authorizations are in full force and effect, and, to such counsel's knowledge, the Company and the Association are in all materials respects complying therewith. (xvii) To such counsel's knowledge, neither the Company nor the Association is in violation of its certificate of incorporation and bylaws, or charter and bylaws, respectively, nor, to such counsel's knowledge, in default (nor has any event occurred which, with notice or lapse of time or both, would constitute a default) in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which the Company, the Association or any of their property may be bound in any respect that would have a material adverse effect upon the financial condition, results of operations or business of the Company and the Association, taken as a whole. (xviii) The Company's certificate of incorporation and bylaws comply with the laws of the State of Delaware. The Bank's charter and bylaws, to be effective upon completion of the Conversion, comply with the laws of the United States of America. (xix) to make any material change in the method of conducting its business. (xx) 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” “~~" "The Conversion," "Restrictions on ~~Acquisition~~ Acquisitions of ~~Eagle Bancorp Montana, Inc.~~Stock and Related Takeover Defensive Provisions,~~” “~~" "Taxation," and "Description of Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion~~Stock,~~” and “The Conversion and Offering,”~~ " to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate and complete 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 giving such opinion, such counsel may rely ~~(A)~~ as to all matters ~~involving~~ of fact on certificates of officers or directors of the ~~application~~ Company and the Association and certificates of ~~laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the~~ public officials. Such opinion ~~of counsel reasonably acceptable to the Agent, as long as such other opinion indicates~~ may specify that ~~the Agent may rely on the opinion, and (B) as~~ it shall be limited to matters of ~~fact~~federal, Delaware and Ohio law. All references to "to such counsel's knowledge" in such opinion shall refer to the ~~extent such counsel deems proper, on certificates~~ actual and conscious awareness of ~~responsible officers~~ facts or other information 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 andindividual Silver, ~~if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of~~ ▇▇▇▇▇▇▇▇ ~~Peabody LLP~~ & ▇▇▇▇, L.L.P., attorneys who have been actively involved in ~~form~~ the transactions contemplated by this Agreement or the preparation of such opinion. For purposes of such opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and ~~substance~~ no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company or the Association, or their counsel, shall have received a copy of such proceedings, order, stop order or action and such counsel need not regard an litigation or governmental proceeding to be "threatened" unless the potential litigant or governmental authority has manifested to the ~~effect~~ management of the Company or the Association or to such counsel, a present intention to initiate such litigation or proceeding. Such counsel may assume that any agreement is the valid and binding obligation of any parties to such agreement other than the Company or the Association. In addition, such counsel shall provide a letter stating that during the preparation of the Registration ~~Statement~~ Statement, Conversion Application and the Prospectus, ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ such counsel participated in conferences with certain officers of and other representatives of the ~~Primary Parties~~Association and the Company, representatives of the Agent, counsel to the Agent, representatives of the independent public accountants for the ~~Primary Parties~~ Association and ~~representatives of~~ the ~~Agent~~ Company at which the contents of the Registration ~~Statement~~ Statement, the Conversio Application 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~~ they are not passing upon and do not assume the ~~opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified~~ responsibility for the accuracy, completeness or fairness of the statements contained in the Registration ~~Statement~~ Statement, the Conversion Application and Prospectus, on the basis of the ~~foregoing~~foregoing (relying as to factual matters on certificates of officers and other factual representations by the Association and the Company), nothing has come to ~~the~~ such counsel's attention ~~of ▇▇▇▇▇ Peabody LLP~~ that caused ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ them to believe that the Registration Statement at the time it was declared effective by the ~~Commission~~ SEC or the Prospectus as of its date and as of the ~~date~~ Closing Date, contained or contains any untrue statement of ~~such letter~~ a material fact or ~~that~~ omitted or omits to state any material fact required to be stated therein or necessary to make the ~~General Disclosure Pack~~statements therein, in the light of the circumstances under which they were made, not misleading (it being understo

Appears in 1 contract

Sources: Agency Agreement (First Niles Financial Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings 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 for use of the Prospectus or the consummation of the Conversion shall have been ~~issued~~issued to any of the Primary Parties' best knowledge, or proceedings therefor initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Montana~~ Delaware and in each other jurisdiction in which the conduct of its business requires such ~~qualification,~~ qualification and except where the failure to qualify would ~~not~~ have a Material Adverse Effect. (ii) ~~The~~ On the date hereof, 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~~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; ~~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,~~ MHC and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental ~~authorizations~~ authorization are in full force and effect, and to the best of such counsel’s 's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects. (viiv) ~~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 to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~vii~~v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the ~~Offer Shares~~ shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the 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~~ charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other ~~document known to such counsel~~document, except for the subscription rights under the Plan. (~~viii~~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 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 as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ ' rights generally, or the rights of creditors of savings ~~institutions~~ banks or other financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, or the reorganization of financial institutions and (~~including~~ 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 ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (ixvii) 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~~ MHC in the manner required by the Conversion Regulations and the ~~certificate of incorporation, charters~~ MHC's charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (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. (xiviii) The Conversion ~~Application,~~ Application and 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,~~ 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. (xiiiix) The Registration Statement has become effective under the 1933 ~~Act~~Act and to such counsel's knowledge, ~~and~~ no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvx) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvi~~xi) At the time the ~~Applications were approved and as of the Closing Date~~Conversion Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement~~ 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 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xvii~~xii) At the time that the Registration Statement became effective ~~and as of the Closing Date,~~ the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xviii~~xiii) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (~~xix~~xiv) 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 the Acquisition of ~~Eagle Bancorp Montana~~Fidelity Bankshares, Inc.,~~” “~~" "Description of Capital Stock of ~~Eagle Bancorp Montana~~Fidelity Bankshares, ~~Inc. Following the Conversion~~Inc.,” " and “"The Conversion 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 is accurate in all material ~~respects.~~ 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) as to matters involving the application of laws of any jurisdiction other than the ~~United States~~financial statements, notes to ~~the extent such counsel deems proper and specified in such opinion~~financial statements, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇▇ Peabody 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 financial tables and other ~~representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties~~ financial 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~~ statistical data included therein and the ~~statements contained therein and, although (without limiting~~ appraisal valuation and the ~~opinions provided pursuant~~ business plan as to ~~Section 10(b)(1~~which counsel need express no opinion)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 1 contract

Sources: Agency Agreement (Fidelity Bankshares Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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 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~~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 ~~Seattle~~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 ~~certificate~~ 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~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (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~~ 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~~ 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,~~ Application and 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 no opinion need be rendered. (xii) The ~~purchase~~ acquisition 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~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes ~~such~~ the opinions rendered by such counsel and ~~Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP~~ ParenteBeard LLC 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~~complies with all statutory requirements. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ~~Applications~~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,” “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of ~~Eagle Bancorp~~Colonial Bankshares, Inc.,” “Restrictions on Acquisition of ~~Eagle Bancorp Montana~~Colonial Financial Services, Inc.,” “Description of Capital Stock of ~~Eagle Bancorp Montana~~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 ~~Delaware~~ New York and ~~Montana~~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 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 ~~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 ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ▇▇▇▇▇ 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 PackLuse, Go

Appears in 1 contract

Sources: Agency Agreement (Colonial Bankshares Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the ~~Conversion~~ Offering are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission, the Conversion Application, Holding Company Application~~ Commission and the ~~Merger~~ Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the ~~Conversion~~ Offering shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a federally-chartered stock corporation duly organized and validly existing ~~and in good standing~~ under the laws of the ~~State of Delaware~~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 ~~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~~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,~~ rules and regulations ~~and practices~~ of the OTS; ~~and at the Closing Date, the issuance and sale~~ all of the ~~capital stock~~ outstanding Common 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 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 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,~~ 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 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~~ Company, the MHC and the Bank are complying therewith in all material respects. (viv) The Bank is a member of the FHLB of ~~Seattle~~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. (~~vii~~vi) ~~Upon consummation of the Conversion, (a) the authorized, issued and outstanding~~ The authorized capital stock of the Holding Company ~~will be within the range set forth in the Prospectus under the caption “Capitalization,” and no~~ consists of 50,000,000 shares of Common Stock ~~have been or will be issued~~ and ~~outstanding prior to~~ 10,000,000 shares of Preferred Stock; at the Closing ~~Date (except for~~ Date, the shares ~~issued upon incorporation of~~ contributed by the MHC to the Holding Company ~~to facilitate the Conversion); (b) the Offer Shares to be subscribed~~ for ~~in the Offering~~ issuance will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; ~~(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 Offer Shares is not subject to preemptive rights under the ~~certificate of incorporation~~ 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. (~~viii~~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). (ixviii) 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~~ OTS 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. (xix) 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~~ Offering imposed by the ~~OTS~~ 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. (xix) The ~~Conversion Application, the Holding Company~~ Application ~~and the Merger Application have~~ has been approved by the ~~OTS and the Prospectus, the Voting Members’ Proxy Statement~~OTS, and the ~~Stockholders’ Proxy Statement have~~ 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, the issuance of the Exchange Shares,~~ Shares and the consummation of the ~~Conversion~~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. (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. (xiiixi) 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvxii) 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~~xiii) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented~~), the Voting Members’ Proxy Statement (as amended or supplemented~~) ~~and the Stockholders’ Proxy Statement (as amended or supplemented),~~ complied as to form in all material respects with the requirements of the ~~Conversion~~ OTS Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ~~Applications~~Application filed. (~~xvii~~xiv) 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~~xv) 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~~ Offering or the offer, sale or issuance of the Offer Shares. (~~xix~~xvi) 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 Our Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion~~Stock,” and “The ~~Conversion and~~ Stock Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxxvii) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xviii) None of the Primary Parties is in violation of its ~~certificate of incorporation or its charter, as the case may be,~~ charter 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,~~ charter 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~~ State of ~~Delaware and Montana~~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 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 ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, ▇▇▇▇▇▇▇▇ ~~Peabody LLP~~ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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 ~~Pack~~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 Silver, ▇▇▇▇▇▇▇▇ & Taff, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. (4) The letter of Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the 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)), Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. that caused Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the 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 th

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp/Ga)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS~~Federal Reserve, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Federal Reserve, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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~~Ohio-chartered ~~stock~~ savings ~~bank~~and loan association, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~federally~~Ohio-chartered ~~stock~~ savings ~~bank~~and loan association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the ~~OTS~~FDIC and the Federal Reserve, and Ohio law and the rules, regulations and practices of the Ohio Department of Financial Institutions; 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, with respect to the Holding Company by the laws of the State of Maryland, and with respect to the Bank by the laws of the State of Ohio. 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 to such counsel’s knowledge 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~~Cincinnati. 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~~ 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~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (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~~ 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~~ Federal Reserve, 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~~Application (including the Plan, ~~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~~ Statement) and the Holding Company Application have been ~~authorized for use~~ approved by the ~~OTS~~Federal Reserve, 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~~ acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve, 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~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes ~~such~~ the opinions rendered by such counsel and ~~Gough~~Clark, ~~Shanahan~~Schaefer, ▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ PLLP~~ Co. 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~~complies with all statutory requirements. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, 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)Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ Federal Reserve in approving the ~~Applications~~Applications filed with the Federal Reserve. (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~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of ~~Eagle Bancorp~~Cheviot-Federal,” “Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~Cheviot-State,” “Description of Capital Stock of ~~Eagle Bancorp Montana, Inc.~~ New Cheviot 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~~ 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 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~~ New York, Ohio and ~~Montana~~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 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 ~~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 ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 1 contract

Sources: Agency Agreement (Cheviot Financial Corp.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission,~~ Commission and the Conversion ~~Application,~~ Application shall have received non-objection from the FDIC and been approved by the Commissioner and the Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS~~Federal Reserve Board and the Commissioner, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~FDIC, the Commissioner, the Federal Reserve Board, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ |▇▇▇▇▇~~▇▇ LLP and/or local counsel acceptable to the Agent~~, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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-~~state- chartered ~~stock~~ mutual savings ~~bank~~bank duly organized and validly existing under the laws of the State of Maryland, and upon consummation of the Conversion, the Bank will ~~continue to~~ be a validly existing ~~federally~~state-chartered commercial bank duly organized and validly existing as a stock ~~savings bank~~form of organization under the laws of the State of Maryland, 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 and state law and the rules, regulations and practices of the ~~OTS~~FDIC and the Commissioner; 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,~~ Company and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by federal ~~law~~law and the laws of the State of Maryland. To such counsel’s knowledge, each of the ~~MHC, the Mid-Tier~~ Holding ~~Company, the Holding Company,~~ 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. (viiv) The Bank is a member of the FHLB of ~~Seattle~~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. (~~vii~~v) The authorized capital stock of the Bank consists of ( ) shares of common stock, par value $ per share, and when issued pursuant to the Plan, such shares will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the Securities Act. (vi) 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)~~Date; (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; and (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~~ 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~~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). (ixviii) 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 has been approved by the ~~stockholders~~ members of the ~~Mid-Tier Holding Company and the Voting Members~~ Bank in the manner required by the Conversion ~~Regulations~~ Regulations, the Commissioner and the ~~certificate~~ articles of ~~incorporation, charters~~ incorporation and bylaws of ~~each of the MHC, the Mid-Tier Holding Company, the Holding Company and~~ the Bank. (xix) The Conversion, including the ~~Offering and the Exchange~~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 Conversion imposed by the ~~OTS~~ FDIC, the Commissioner, 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~~elapsed. (xix) The Conversion Application, which includes the Prospectus and the Proxy Statement, has received non-objection from the FDIC and has been approved by the Commissioner and the Holding Company Application ~~and the Merger Application have~~ has been approved by the ~~OTS~~ Federal Reserve Board and the ~~Prospectus, the Voting Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS~~Commissioner, 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~~xi) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve Board and the Commissioner, and no action has been taken or is pending ~~or, to such counsel’s knowledge,~~ or threatened to revoke any such authorization or approval. (~~xiii~~xii) 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~~xiii) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering – Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering – Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such ~~opinions~~ opinion rendered by such counsel ~~and Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP~~ to the Primary Parties with respect to such matters. (xvxiv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (~~xvi~~xv) At the time the Applications received non-objection or were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented~~), the Voting Members’ Proxy Statement (as amended or supplemented~~) and the ~~Stockholders’~~ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the ~~OTS~~FDIC and the Commissioner, 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~~ FDIC, the Commissioner and the Federal Reserve Board in approving or not objecting to the Applications. (~~xvii~~xvi) 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~~xvii) 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~~xviii) 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~~▇▇▇▇▇▇▇ Bancorp, Inc.,” “Description of Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion,~~Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxxix) None of the Primary Parties are required to be registered as an “investment ~~company under~~ company” as such term is defined in the Investment Company Act of 1940. (~~xxi~~xx) None of the Primary Parties is in violation of its ~~certificate~~ 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 ~~certificate~~ 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~~ State of ~~Delaware and Montana~~Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such ~~counsel and, if applicable, local~~ counsel~~, whose opinion(s) shall expressly authorize such reliance~~. (2) The letter of ▇▇▇▇|▇▇▇▇▇ ~~Peabody LLP~~ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇~~▇ ▇▇~~|▇▇▇▇▇ ~~LLP~~ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇~~▇ ▇▇~~|▇▇▇▇▇ ~~LLP~~ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇|▇▇▇▇▇ ~~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~~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 the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇|▇▇▇▇▇. (4) The letter of ▇▇▇▇▇ ▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, re

Appears in 1 contract

Sources: Agency Agreement (Carroll Bancorp, Inc.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & S▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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~~bank in good standing, 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 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 and in good standing 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 and in good standing 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~~Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects. (vi) The Bank is a member of the FHLB of ~~Seattle~~Atlanta. 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, to such counsel’s knowledge,~~ or 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 and the Exchange Shares is not subject to preemptive rights under the ~~certificate~~ 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~~ members of the MHC 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~~ To such counsel’s knowledge, 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); and, to such counsel’s knowledge, all terms, conditions, requirements and provisions with respect to the Conversion imposed by the Commission, 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,~~ Application and the Holding Company ~~Application and the Merger~~ Application have been approved by the ~~OTS~~ 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 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 to such counsel’s knowledge, no action has been taken or is pending ~~or, to such counsel’s knowledge,~~ or threatened to revoke any such authorization or approval. (xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued ~~or proceedings for that purpose have been instituted~~ or, to such counsel’s knowledge, proceedings for that purpose have been instituted or 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~~ opinion rendered by such counsel and ~~Gough, Shanahan,~~ C▇▇▇▇ C▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ PLLP~~ and Company LLC 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~~ Conversion Application was approved and as of the Closing Date, the ~~Applications~~ Conversion Application (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, 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. (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~~ To such counsel’s knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares or the issuance of the Exchange 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.~~Atlantic Coast Financial Corporation,” “Description of Capital Stock of ~~Eagle Bancorp Montana, Inc.~~ Atlantic Coast Financial Corporation 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~~ 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 ~~certificate~~ 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 ~~Delaware~~ New Jersey and ~~Montana~~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 are 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 L▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & S▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ~~▇▇▇▇▇~~ Luse, Gorman, P▇▇▇▇▇▇▇ ~~LLP~~ & S▇▇▇▇▇, 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)), L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & S▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, P▇▇▇▇▇▇▇ ~~Peabody LLP~~ & S▇▇▇▇▇, P.C. that caused L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & S▇▇▇▇▇, 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 ~~Pack~~Package as

Appears in 1 contract

Sources: Agency Agreement (Atlantic Coast Financial CORP)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the ~~Primary~~ Bank Mutual Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and correct, the condition that the ~~Primary~~ Bank Mutual Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Bank Mutual Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Bank Mutual Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇ LLP ~~and/or local counsel acceptable to the Agent,~~ in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly ~~organized and~~ organized, validly existing and in active status under the laws of the State of Wisconsin, 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, as described in the Prospectus, requires such qualification. (ii) The Bank is a validly existing capital stock federal savings association in good standing under the laws of the ~~State~~ United States of ~~Delaware~~America, and upon consummation of the Conversion, the Bank shall continue to be a validly existing capital stock federal savings association, 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~~ enter into this Agreement and ~~is in good standing in Montana and in each other jurisdiction in which the conduct of~~ perform 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 Prospectusobligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; ~~and at 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. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct their respective businesses as described in the Prospectus. (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,~~ MHC and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by under applicable federal law. ~~To such counsel’s knowledge, each~~ Each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are ~~material for~~ required to conduct a banking business as described in the ~~conduct of its business~~Prospectus, except where the failure to obtain them would not have a Material Adverse Effect, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s 's knowledge the Mid-Tier Holding Company and the Bank ~~are complying~~ comply therewith in all material respects. (viiv) ~~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 to such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~vii~~v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the ~~Offer Shares~~ shares to be subscribed for in the ~~Offering~~ 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;~~ nonassessable (~~c) the Exchange Shares~~ except with respect to ~~be issued~~ assessability as provided 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~~Section 180.0622(2)); and (dc) 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. (~~viii~~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 ~~Primary~~ Bank Mutual Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the ~~Primary~~ Bank Mutual Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ ' rights generally, or the rights of creditors of savings ~~institutions~~ banks or financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and (~~including~~ 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 ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (ixvii) 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~~ MHC in the manner required by the Conversion Regulations and the ~~certificate of incorporation, charters~~ MHC's charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (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. (xiviii) The Conversion ~~Application,~~ Application and 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,~~ 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. (xiiiix) The Registration Statement has become effective under the 1933 ~~Act,~~ Act and to such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvx) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvi~~xi) At the time the ~~Applications were approved and as of the Closing Date~~Conversion Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement~~ 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 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xvii~~xii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xviii~~xiii) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (~~xix~~xiv) The information in the Prospectus under the captions ~~“Supervision and Regulation~~"The Conversion,~~” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison~~ " "Certain Restrictions on Purchase or Transfer of ~~Stockholders’ Rights for Existing Stockholders of Eagle Bancorp” “~~Our Shares after Conversion," "Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~Bank Mutual Corporation,~~” “~~" and "Description of Our Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion~~Stock,~~” and “The Conversion and Offering,”~~ " to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxxv) None of the ~~Primary~~ Bank Mutual Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xvi) 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 The execution and delivery of and performance under this Agreement by the ~~Primary~~ Bank Mutual Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and (subject to receipt of all necessary governmental approvals and approval of the Plan by the voting members of the MHC and the shareholders of the Mid-Tier Holding Company) contemplated in the Plan will not result in (i) any violation of the provisions of the ~~certificate~~ articles of incorporation or charter, as the case may be, or the bylaws of any of the ~~Primary~~ Bank Mutual Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s '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 that should have otherwise been filed as an exhibit to 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 of America and the ~~States~~ laws of ~~Delaware and Montana~~the State of Wisconsin. 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~~States of America or the State of Wisconsin, 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~~ Bank Mutual Parties, agents thereof 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~~ Bank Mutual 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 Milwaukee County, Wisconsin. The opinion of such counsel for the ~~Primary~~ Bank Mutual 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 opinions as to choice of law, securities disclosures and anti-trust matters, and may add other qualifications and explanations on the basis of its opinions as are consistent with the Legal Opinion Accord prepared by the Section of Business Law of the American Bar Association The ~~opinion of such counsel for the Primary Parties also shall state that the~~ Agent’s 's counsel may rely for purposes of its own opinion to the Agent being provided hereunder on the ~~opinion~~ opinion(s) of ~~such counsel and, if applicable, local counsel~~▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, whose opinion(s) shall expressly authorize such reliance. (2) ~~The letter of~~ ▇▇▇▇▇▇▇ ~~Peabody~~ & ▇▇▇▇▇ LLP ~~in form and substance~~ shall also deliver a letter to the ~~effect~~ Agent that shall 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 ~~Primary~~ Bank Mutual Parties, counsel to the Agent, representatives of the independent public accountants for the ~~Primary~~ Bank Mutual Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ ~~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, 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, the appraisal valuation or the business plan). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Bank Mutual Parties delivered pursuant hereto or as such counsel may reasonably request. (4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP relating to the Offerings, including Agent's participation therein, shall be furnished to Agent with a copy thereof addressed to Agent or upon which ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall state Agent may rely. The Blue Sky Memorandum shall relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the common stock under applicable state securities law. (c) Concurrently with the execution of this Agreement, the Agent shall receive a letter or from Ernst & Young LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that Ernst & Young LLP is a firm of independent public accountants within the ~~General Disclosure Pack~~meaning of the 1933 Act, the regulations promulgated thereunder and Regulation S-X, and stating in effect that in Ernst & Young 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 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 proce

Appears in 1 contract

Sources: Agency Agreement (Bank Mutual Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission,~~ Commission and the Conversion ~~Application,~~ Application shall have received non-objection from the FDIC and been approved by the Commissioner and the Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS~~Federal Reserve Board and the Commissioner, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~FDIC, the Commissioner, the Federal Reserve Board, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ |▇▇▇▇▇~~▇▇ LLP and/or local counsel acceptable to the Agent~~, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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~~state-chartered ~~stock~~ mutual savings ~~bank~~bank duly organized and validly existing under the laws of the State of Maryland, and upon consummation of the Conversion, the Bank will ~~continue to~~ be a validly existing ~~federally~~state-chartered commercial bank duly organized and validly existing as a stock ~~savings bank~~form of organization under the laws of the State of Maryland, 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 and state law and the rules, regulations and practices of the ~~OTS~~FDIC and the Commissioner; 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,~~ Company and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by federal ~~law~~law and the laws of the State of Maryland. To such counsel’s knowledge, each of the ~~MHC, the Mid-Tier~~ Holding ~~Company, the Holding Company,~~ 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. (viiv) The Bank is a member of the FHLB of ~~Seattle~~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. (~~vii~~v) The authorized capital stock of the Bank consists of ( ) shares of common stock, par value $ per share, and when issued pursuant to the Plan, such shares will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the Securities Act. (vi) 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)~~Date; (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; and (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~~ 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~~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). (ixviii) 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 has been approved by the ~~stockholders~~ members of the ~~Mid-Tier Holding Company and the Voting Members~~ Bank in the manner required by the Conversion ~~Regulations~~ Regulations, the Commissioner and the ~~certificate~~ articles of ~~incorporation, charters~~ incorporation and bylaws of ~~each of the MHC, the Mid-Tier Holding Company, the Holding Company and~~ the Bank. (xix) The Conversion, including the ~~Offering and the Exchange~~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 Conversion imposed by the ~~OTS~~ FDIC, the Commissioner, 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~~elapsed. (xix) The Conversion Application, which includes the Prospectus and the Proxy Statement, has received non-objection from the FDIC and has been approved by the Commissioner and the Holding Company Application ~~and the Merger Application have~~ has been approved by the ~~OTS~~ Federal Reserve Board and the ~~Prospectus, the Voting Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS~~Commissioner, 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~~xi) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve Board and the Commissioner, and no action has been taken or is pending ~~or, to such counsel’s knowledge,~~ or threatened to revoke any such authorization or approval. (~~xiii~~xii) 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~~xiii) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering – Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering – Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such ~~opinions~~ opinion rendered by such counsel ~~and Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP~~ to the Primary Parties with respect to such matters. (xvxiv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (~~xvi~~xv) At the time the Applications received non-objection or were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented~~), the Voting Members’ Proxy Statement (as amended or supplemented~~) and the ~~Stockholders’~~ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the ~~OTS~~FDIC and the Commissioner, 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~~ FDIC, the Commissioner and the Federal Reserve Board in approving or not objecting to the Applications. (~~xvii~~xvi) 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~~xvii) 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~~xviii) 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~~▇▇▇▇▇▇▇ Bancorp, Inc.,” “Description of Capital ~~Stock of Eagle Bancorp Montana, Inc. Following the Conversion,~~Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxxix) None of the Primary Parties are required to be registered as an “investment ~~company under~~ company” as such term is defined in the Investment Company Act of 1940. (~~xxi~~xx) None of the Primary Parties is in violation of its ~~certificate~~ 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 ~~certificate~~ 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~~ State of ~~Delaware and Montana~~Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such ~~counsel and, if applicable, local~~ counsel~~, whose opinion(s) shall expressly authorize such reliance~~. (2) The letter of ▇▇▇▇|▇▇▇▇▇ ~~Peabody LLP~~ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇~~▇ ▇▇~~|▇▇▇▇▇ ~~LLP~~ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇~~▇ ▇▇~~|▇▇▇▇▇ ~~LLP~~ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇|▇▇▇▇▇ ~~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~~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 the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇|▇▇▇▇▇. (4) The letter of ▇▇▇▇▇ ▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, rep

Appears in 1 contract

Sources: Agency Agreement (Carroll Bancorp, Inc.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the ~~Primary~~ Monadnock Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and correct, the condition that the ~~Primary~~ Monadnock Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the best knowledge of the ~~Primary~~ Monadnock Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the best knowledge of the ~~Primary~~ Monadnock Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & S▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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 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 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which 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 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) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇▇ Peabody LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ 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 1 contract

Sources: Agency Agreement (Monadnock Community Bancorp Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the ~~Primary~~ 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, the condition that the ~~Primary~~ Rome Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Rome Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Rome Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Montana~~ 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 ~~federally-chartered~~ federal stock savings ~~bank,~~ bank and upon consummation of the ~~Conversion~~Conversion and Reorganization, the Bank will continue to be a validly existing ~~federally-chartered~~ federal stock savings bank, with full power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~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; ~~and at the Closing Date,~~ 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 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,~~ MHC and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by under applicable federal law. To the best of such counsel’s knowledge, each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ 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 ~~are complying~~ comply therewith in all material respects. (viiv) ~~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 to such counsel’s knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~vii~~v) Upon consummation of the ~~Conversion~~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 ~~Offer Shares~~ shares to be subscribed for in the ~~Offering~~ 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 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 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. (~~viii~~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 ~~Primary~~ Rome Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the ~~Primary~~ 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 ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ banks or financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and (~~including~~ 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 ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (ixvii) 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~~ MHC in the manner required by the Conversion Regulations and the ~~certificate of incorporation, charters~~ MHC’s charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (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. (xiviii) The Conversion ~~Application,~~ Application and 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,~~ 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. (xiiiix) The Registration Statement has become effective under the 1933 ~~Act~~Act and to such counsel’s knowledge, ~~and~~ no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvx) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvi~~xi) At the time the ~~Applications were approved and as of the Closing Date~~Conversion Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement~~ 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. (~~xvii~~xii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xviii~~xiii) ~~There~~ To such counsel’s knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (~~xix~~xiv) 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~~ New Rome Bancorp ~~Montana, Inc.,~~and Rome Savings” “Description of Capital Stock of ~~Eagle Bancorp Montana, Inc. Following the Conversion,~~New Rome Bancorp” and “The Conversion and Stock Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxxv) None of the ~~Primary~~ Rome Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xvi) None of the ~~Primary~~ Rome Parties is in violation of its ~~certificate~~ Certificate of ~~incorporation~~ 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 ~~Primary~~ 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 ~~certificate~~ articles of incorporation or charter, as the case may be, or the bylaws of any of the ~~Primary~~ 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 own opinion on the opinion(s) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and/or local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion may be limited to matters governed by the laws of the United States and the ~~States~~ corporate laws of the State of Delaware and ~~Montana~~the State of 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, 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~~ 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 ~~Primary~~ 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 ~~Primary~~ Rome Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. ~~The~~ Counsel may expressly exclude any opinion as to choice of ~~such counsel for~~ law, anti-trust matters and may add other qualifications and explanations as are consistent with the ~~Primary Parties also shall state that~~ Legal Opinion Accord of 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~~American Bar Association. (2) The letter of ▇▇▇▇▇▇▇ ~~Peabody~~ ▇▇▇▇▇▇▇ & Wood LLP ~~in form and substance to the effect~~ 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 ~~Primary~~ Rome Parties, counsel to the Agent, representatives of the independent public accountants for the ~~Primary~~ 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 ▇▇▇▇▇▇▇ ~~Peabody~~ ▇▇▇▇▇▇▇ & ▇▇▇▇ 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, including Agent’s participation therein, and should be furnished to Agent with a copy thereof addressed to Agent or upon which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall state Agent may rely. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the common stock under applicable state securities law. (c) Concurrently with the execution of this Agreement, the Agent shall receive a letter or from Independent Auditors, dated the date hereof and addressed to the Agent, such letter (i) confirming that Independent Auditors are firms of independent public accountants within the ~~General Disclosure Pack~~meaning of the 1933 Act and the regulations promulgated thereunder, and stating in effect that in Independent Auditors’ opinions the consolidated 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; (ii) statin

Appears in 1 contract

Sources: Agency Agreement (Rome Bancorp Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application, Holding Company~~ Application and the ~~Merger~~ Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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~~New York-chartered stock savings ~~bank~~bank duly organized and validly existing under the laws of the State of New York, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~federally~~New York state-chartered stock savings ~~bank~~association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank and each Bank Subsidiary as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the ~~OTS~~FDIC and the New York Department of Banking; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, 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; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and ~~the Bank~~each Bank Subsidiary, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, ~~and~~ the Bank and each Bank Subsidiary 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~~ Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary are complying therewith in all material respects. (vivii) The Bank is a member of the FHLB of ~~Seattle~~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~~viii) 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~~ 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~~ix) 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). (ixx) 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~~ members of the MHC in the manner required by the Conversion Regulations and the ~~certificate~~ articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xxi) 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~~ 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. (xixii) The Conversion ~~Application,~~ Application and 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 no opinion need be rendered. (~~xii~~xiii) 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,~~ or threatened to revoke any such authorization or approval. (~~xiii~~xiv) 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~~xv) 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~~ opinion rendered by such counsel and ~~Gough, Shanahan,~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ PLLP~~ LLP to the Primary Parties with respect to such matters. (xvxvi) 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~~xvii) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xvii~~xviii) 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~~xix) 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~~xx) 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~~Oneida Financial Corp.” “Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~Oneida Financial Corp.,” “Description of Capital Stock of ~~Eagle Bancorp Montana, Inc.~~ Oneida Financial Corp. 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. (xxxxi) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its ~~certificate~~ 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 ~~certificate~~ articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary ~~Parties~~Parties or any Bank Subsidiary, (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~~ New York and ~~Montana~~Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, 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)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 Packrelated

Appears in 1 contract

Sources: Agency Agreement (Oneida Financial Corp.)

Conditions to the Agent’s Obligations. The obligations of the Agent ~~hereunder and~~ hereunder, as to the ~~occurrence of~~ Shares to be delivered at the Closing ~~and~~ Date, are subject, to the ~~Conversion are subject~~ extent not waived in writing by the Agent, to the condition that all representations and warranties of the ~~Primary Parties~~ Company and the Association herein ~~contained~~ are, at and as of the commencement of the Offering and at and as of the Closing Date, true and ~~correct~~correct in all material respects, the condition that the ~~Primary Parties~~ Company and the Association shall have performed all of their obligations hereunder to be performed on or before such ~~dates~~ dates, and to the following further conditions: (a) At the Closing Date, the Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS. (b) The Registration Statement shall have been declared effective by the ~~Commission,~~ Commission and the Conversion ~~Application, Holding Company~~ Application ~~and the Merger Application shall have been~~ approved by the ~~OTS~~OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order ~~or other action~~ suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefor~~ therefore initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the Commission or any state ~~authority~~ authority, and no order or other action suspending the authorization ~~for use~~ of the Prospectus or the consummation of the Conversion shall have been ~~issued,~~ issued or proceedings ~~therefor~~ therefore initiated or, to the ~~knowledge of~~ Company's or the ~~Primary Parties~~Association's knowledge, threatened by the Commission, the OTS, the ~~Commission~~ FDIC, or any ~~other governmental body~~state authority. (bc) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing ~~Date~~Date and addressed to the Agent and for its benefit, of ~~▇▇▇▇▇~~ Elias, Matz, ▇▇▇▇▇▇▇ ~~LLP and/or local~~ & ▇▇▇▇▇▇▇, L.L.P., special counsel ~~acceptable to~~ for the ~~Agent~~Company and the Association, in form and substance ~~satisfactory to the Agent and counsel for the Agent~~ to the effect that: (i) The ~~Holding~~ Company has been duly incorporated and is validly existing as a corporation ~~duly organized and validly existing and in good standing~~ under the laws of the ~~State~~ state of ~~Delaware, with~~ Louisiana. (ii) The Company has corporate power and authority to ~~own~~ own, lease and operate its properties and to conduct its business as described in the ~~Prospectus~~ Registration Statement and ~~is duly qualified to transact business and is in good standing in 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~~Prospectus. (iiiii) The ~~Bank is a~~ Association has been duly organized and ~~validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be~~ is a validly existing ~~federally-~~Louisiana chartered savings association in capital stock ~~savings bank~~form of organization, ~~with full power and authority to own its properties and~~ duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus~~; the activities~~ . All 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~~ outstanding capital stock of the ~~Bank to the Holding Company in~~ Association upon completion of the Conversion ~~has been~~ will be 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~~therefor, will be validly issued, fully paid and ~~nonassessable~~ non-assessable and will be owned ~~of record and beneficially~~ by the ~~Holding~~ Company, free and clear of any ~~mortgage~~liens, ~~pledge~~encumbrances, ~~lien, encumbrance, claim~~ claims 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~~restrictions. (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 EffectAssociation has no subsidiaries. (v) The ~~activities~~ Association is a member of the ~~Mid~~FHLB-~~Tier Holding Company~~Dallas. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the ~~MHC,~~ description of the ~~Holding Company, and the Bank,~~ liquidation account as ~~described~~ set forth in the Prospectus under the captions "The Conversion and Reorganization-Effect on Liquidation Rights" and "- Liquidation Rights," to the ~~General Disclosure Package~~extent that such information constitutes matters of law and legal conclusions, ~~are permitted~~ has been reviewed by ~~federal law. To~~ such ~~counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company,~~ counsel 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 is accurately described 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~~ " and, no shares of Common Stock have been ~~or will be~~ issued ~~and outstanding~~ prior to the Closing ~~Date (except for~~ Date; at the ~~shares issued upon incorporation~~ time of the ~~Holding Company to facilitate~~ Conversion, the ~~Conversion); (b) the Offer~~ Shares ~~to be~~ subscribed for in pursuant to 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~~Plan and Prospectus, will be duly and validly issued and fully paid and ~~nonassessable~~non-assessable; (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 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xv) The terms and provisions of the ~~shares of Common Stock~~ Shares conform in all material respects to the description thereof contained in the ~~Registration Statement and the~~ Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, 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~~'s Actual Knowledge, ~~no person has sought to obtain regulatory or judicial review of~~ upon the final action of the OTS in approving the Applications. (xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which 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 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,” good title to the ~~extent that such information constitutes matters of law~~Shares will be transferred by the Company to the purchasers thereof against payment therefor, 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, subject 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~~ claims 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~~ asserted against the purchasers thereof by the laws of the United States and the States of Delaware and Montana. 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 reliancethird-party claimants. (2) The letter of ▇▇▇▇▇ Peabody LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ 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 1 contract

Sources: Agency Agreement (Gs Financial Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing ~~and the Conversion~~ are subject to the ~~condition~~ conditions that (i) all representations and warranties and other statements of the ~~Primary~~ Federal Life 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~~correct in all material respects, and (ii) the ~~condition that the Primary~~ Federal Life Parties shall have performed all of their obligations hereunder to be performed on or before such ~~dates~~ dates, and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission~~, the Conversion Application, Holding Company Application and the Merger Application shall have been approved by the OTS~~, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to ~~the knowledge~~ any of the ~~Primary~~ Federal Life Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been ~~issued,~~ issued or proceedings therefor initiated or, to ~~the knowledge~~ any of the ~~Primary~~ Federal Life Parties’ knowledge, threatened by the ~~OTS~~Department, the ~~Commission~~ Commission, or any other governmental body. The Conversion Application shall have been approved by the Department. (b) At the Closing ~~Date~~Time, the Agent shall have received: (1) ~~The opinion~~An opinion or opinions, dated as of the Closing ~~Date~~Time, of ~~▇▇▇▇▇ ▇~~S▇▇▇▇▇▇ ~~LLP and/or local~~ & L▇▇, P.C., as counsel ~~acceptable~~ to the ~~Agent~~Federal Life Parties, in form and substance satisfactory to ~~the Agent and~~ counsel for the ~~Agent~~ Agent, to the effect that: (i) ~~The Holding Company~~ HoldCo is a corporation duly ~~organized~~ incorporated and validly ~~existing and in good standing~~ subsisting under the laws of the ~~State~~ Commonwealth of ~~Delaware~~Pennsylvania, with corporate power and authority to ~~own~~ 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 Federal Life Mutual was a mutual insurance holding company, and, after the Closing Time, Federal Life will be a duly incorporated and validly subsisting Illinois stock insurance holding 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 is in good standing in ~~Montana and in~~ each ~~other~~ jurisdiction in which the conduct of its business requires such ~~qualification, except where~~ qualification and in which the failure to qualify would ~~not~~ have a Material Adverse Effect. (iiiii) ~~The Bank~~ Federal Life is a corporation duly ~~organized~~ incorporated and validly ~~existing federally-chartered stock savings bank, and upon consummation~~ subsisting under the laws of the ~~Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank~~State of Illinois, with ~~full~~ corporate power and authority to ~~own~~ own, lease and operate its properties and to conduct its business as described in the Prospectus~~; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules~~, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, ~~upon payment therefor in accordance with the terms of the Plan~~to its knowledge, 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 and will be in good standing in each ~~other~~ jurisdiction in which the conduct of its business requires such ~~qualification, except where~~ qualification and in which the failure to qualify would ~~not~~ have a Material Adverse Effect. (iv) The ~~Mid-Tier Holding Company is a federally-chartered~~ authorized capital stock ~~corporation duly organized and validly existing under the laws~~ of ~~the United States~~HoldCo consists of 10,000,000 shares of Common Stock, 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$0.01 par value per share, and ~~the Bank, as described in the Prospectus~~ HoldCo has no shares of capital stock issued and ~~the General Disclosure Package, are permitted by federal law~~outstanding. 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 Immediately upon consummation of the ~~Conversion~~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 incorporation~~ of ~~the Holding Company to facilitate the Conversion); (b) the Offer Shares~~ 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 ~~the Holding Company~~ HoldCo 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 (db) the issuance of the ~~Shares is~~ shares of Common Stock of HoldCo will not be subject to preemptive rights under the ~~certificate~~ articles of incorporation or bylaws of ~~the Holding Company~~HoldCo, or arising or outstanding by operation of law or or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other ~~document known to such counsel~~document, except for the subscription rights under the ~~Plan~~Plan and the provisions of the Standby Stock Purchase Agreement dated as of March 8, 2018 between the Federal Life Parties and Insurance Capital Group LLC. (~~viii~~v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the ~~Primary~~ Federal Life Parties; and this Agreement constitutes a ~~valid,~~ valid and legal ~~and binding~~ obligation of each of the ~~Primary~~ Federal Life 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). (ixvi) 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~~ Federal Life Mutual 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~~Insurance Code. (xvii) ~~The Conversion~~Upon consummation of the Offering, ~~including~~ to the knowledge of such counsel, (a) the Offering ~~and the Exchange,~~ was ~~effected~~ made in all material respects in accordance with the ~~Plan and all applicable laws~~Plan, ~~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~~b) ~~of this Agreement);~~ all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the ~~OTS~~ Commission or ~~any other governmental agency, if any,~~ the Department were complied with by the ~~Primary~~ Federal Life Parties in all material respects or appropriate waivers were ~~obtained~~ obtained, and (c) all ~~notices~~ notice and waiting periods were ~~satisfied~~satisfied or waived; provided, ~~waived or replaced. (xi) The Conversion Application~~however, 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, that 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 opinion need be ~~required under~~ expressed concerning the state securities or “blue ~~sky”~~ sky laws or foreign securities laws of various jurisdictions ~~as to~~ in which ~~no opinion need~~ the Shares will be ~~rendered~~offered. (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. (xiiiviii) The Registration Statement has become effective under the 1933 ~~Act~~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 or~~ issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge, threatened by the Commission~~or threatened. (~~xiv~~ix) 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xv) The terms and provisions description of the shares of Common Stock ~~conform to the description thereof~~ 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 ~~the form~~ bylaws of ~~certificate to be used to evidence the shares of Common Stock is in due and proper form~~HoldCo, provide a fair summary thereof. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xviix) At the time that the Registration Statement became ~~effective and as of the Closing Date~~effective, the Registration Statement, including the Prospectus (contained therein, as amended or ~~supplemented)~~ 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~~ 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. (~~xviii~~xi) ~~There~~ To such counsel’s knowledge, there are no legal or governmental proceedings ~~pending, or, to such counsel’s knowledge,~~ 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. (~~xix~~xii) The information in the Prospectus under the captions “~~Supervision and~~ BUSINESS — 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~~DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that ~~such information~~ it constitutes ~~matters of law,~~ summaries of legal matters, documents or proceedings, or legal conclusions, ~~has been reviewed by such counsel and is accurate~~ fairly presents in all material ~~respects~~respects the information required to be presented in Form S-1. (xxxiii) None of the ~~Primary~~ Federal Life Parties ~~are~~ is required to be registered as an investment company under the Investment Company Act of 1940, as amended. (~~xxi~~xiv) ~~None~~ To such counsel’s knowledge, none of the ~~Primary~~ Federal Life Parties is in violation of its ~~certificate of incorporation or its charter,~~ Organizational Documents as in effect at the ~~case may be, or its bylaws or~~Closing Time. In addition, 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~~ Federal Life Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in ~~(i)~~ any material violation of the provisions of the ~~certificate of incorporation or charter, as the case may be, or the bylaws~~ Organizational Documents of any of the ~~Primary Parties, (ii)~~ Federal Life Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of Delaware and Montana. 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~~without independent investigation, on certificates of responsible officers of the ~~Primary~~ Federal Life Parties (to the extent relevant) and public officials; , provided copies of any such ~~opinion(s) or~~ certificates ~~of public officials~~ are delivered to Agent together with the opinion to be rendered ~~hereunder by special counsel~~ hereunder. Such opinion may be limited to the ~~Primary Parties. The~~ laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not 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 relianceany other state. (2) ~~The~~ A letter of S▇▇▇▇▇▇ ~~Peabody LLP in form and substance~~ & L▇▇, PC addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, ~~▇▇▇▇▇ ▇~~representatives of S▇▇▇▇▇▇ ~~LLP~~ & L▇▇, PC participated in conferences with certain officers of and other representatives of the ~~Primary~~ Federal Life Parties~~, counsel to the Agent~~, representatives of the independent public ~~accountants~~ accounting firm for the ~~Primary~~ Federal Life Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were ~~discussed~~ discussed, and ~~has considered the matters required to be stated therein and the statements contained therein and,~~ although (without limiting the opinions provided pursuant to Section 10(b)(1)~~), ▇▇▇▇▇ ▇~~) S▇▇▇▇▇▇ ~~LLP~~ & L▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the ~~foregoing~~information obtained in the course of engagement as counsel, nothing has come to the attention of ~~▇▇▇▇▇ Peabody LLP that caused ▇▇▇▇▇ ▇~~the representatives of S▇▇▇▇▇▇ ~~LLP~~ & L▇▇, PC providing services to the Federal Life Parties that caused them to believe that (i) the Registration Statement at the time it was ~~declared~~ ordered effective by the ~~Commission~~ Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Prospectus, as of its date and as of the ~~date~~ Closing Time, contained or contains any untrue statement of ~~such letter~~ a material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure ~~Pack~~Package and the Prospectus, and counsel need not express any belief with respect to the financial statements, schedules and other financial and statistical data included, statistical or appraisal or valuation methodology employed, or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package). (3) A blue sky memorandum from S▇▇▇▇▇▇ & L▇▇, PC addressed to the Federal Life Parties and the Agent relating to the Offering, including the Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law. (a) 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 the form set forth in Exhibit A hereto. (b) At the Closing Time, the Agent shall receive a letter from BKD LLP 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 Chief Financial Officer of each of the Federal Life Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Prospectus and at the time the Prospectus became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) since the date the 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 or business of the Federal Life 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 Federal Life Parties independently, or of the Federal Life Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Time; (v) each of the Federal Life Parties 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 Time including the conditions contained in this Section 10; (vi) no stop order suspending the effectiveness of the Registration Statement 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 or the use of the Prospectus has been issued and, to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the Commission, or any other federal or state authority; and (viii) to their knowledge, no person has sought to obtain review of the final action of the Director with respect to the Conversion Application. (d) Prior to and at the Closing Time, none of the Federal Life Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective Material Adverse 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. (e) At or prior to the Closing Time, the Department shall have issued a letter or order to Federal Life, which shall have the force of approving the Conversion and Offering. (f) Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority other than temporary trading halts (A) imposed as a result of intraday changes in the Dow J▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of federally-insured financial institutions or general moratorium on the withdrawal of deposits from federally-insured financial institutions declared by either federal or state authoritie

Appears in 1 contract

Sources: Agency Agreement (Federal Life Group, Inc.)

Conditions to the Agent’s Obligations. The Agent's obligations of hereunder are subject, to the ~~Agent hereunder and~~ extent not waived in writing by the ~~occurrence of the Closing and the Conversion are subject~~ Agent, to the condition that all representations and warranties of the ~~Primary Parties~~ Company and the Association herein ~~contained~~ are, at and as of the commencement of the Offering and at and as of the Closing Date, true and ~~correct~~correct in all material respects, the condition that the ~~Primary Parties~~ Company and the Association shall have performed all of their obligations hereunder to be performed on or before such ~~dates~~ dates, and to the following further conditions: (a) At the Closing Date, the Company and the Association shall have conducted the Conversion in all material respects accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS, the FDIC, the Commission and any state securities agency. (b) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application, Holding Company~~ Application ~~and the Merger Application shall have been~~ approved by the OTS, and the Holding Company Application approved by the OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order ~~or other action~~ suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefor~~ therefore initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the ~~Commission~~ Commission, or any state authority and no order or other action suspending the authorization ~~for use~~ of the Prospectus or the consummation of the Conversion shall have been ~~issued,~~ issued or proceedings ~~therefor~~ therefore initiated or, to the ~~knowledge~~ best of the ~~Primary Parties~~Company's and the Association's knowledge, threatened by the ~~OTS~~Commission, the ~~Commission~~ OTS or any other ~~governmental body~~federal or state authority. (bc) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing ~~Date~~Date and addressed to the Agent for their benefit, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP and/or local~~ ▇▇, Washington, D.C., counsel ~~acceptable to~~ for the ~~Agent~~Company and the Association, in form and substance ~~satisfactory to the Agent and counsel for the Agent~~ to the effect that: (i) The ~~Holding~~ Company has been duly incorporated and is validly existing as a corporation ~~duly organized and validly existing and~~ in good standing under the laws of the State of Delaware~~, with~~ . (ii) The Company has full corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement. (iii) The Company is ~~duly~~ qualified to ~~transact~~ do business ~~and is~~ as a foreign corporation in ~~good standing in Montana~~ the State of Ohio and in each other jurisdiction in which ~~the conduct of its business requires~~ such ~~qualification~~qualification is required, except where the failure to so qualify would not have a ~~Material Adverse Effect. (ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank~~material adverse effect upon the financial condition, ~~and upon consummation~~ results of operations or business 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~~Savings Bank, 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 taken as 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 Effectwhole. (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)~~ Conversion the authorized, issued and outstanding capital stock of the ~~Holding~~ Company will be within the range as set forth in the Prospectus under ~~the caption “~~"Capitalization,” " and no shares of Common Stock have been ~~or will be~~ issued and will remain outstanding prior to the Closing ~~Date~~ Date. (~~except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b~~v) ~~the Offer~~ The Shares ~~to be subscribed for in the Offering will~~ have been duly and validly authorized for ~~issuance~~issuance and sale and, ~~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 duly and validly issued and fully paid and ~~nonassessable;~~ non-assessable. (cvi) 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 The issuance of the ~~Shares~~ Securities is not subject to preemptive or other similar rights ~~under the certificate of incorporation or bylaws of the Holding Company, or~~ arising ~~or outstanding~~ by operation of law ~~or under any contract~~or, ~~indenture, agreement, instrument or other document known~~ to the best of such counsel's knowledge and information, otherwise. (vii) The Association has been at all times since the date hereof and prior to the Closing Date organized, and is validly existing, under the laws of the United States of America as a federally chartered savings and loan association of mutual form, and, at the Closing Date , has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings and loan association of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Association is qualified to do business as a foreign corporation in each jurisdiction in which such qualification is required, except ~~for~~ where the ~~subscription rights under~~ failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company and the Association , taken as a whole. (viii) The Association is a member of the FHLB - Cincinnati and the deposit accounts of the Association are insured by the FDIC up to the applicable limits. (ix) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Association will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. (x) The OTS has approved the Holding Company Application and the Conversion Application; such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Savings Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and, to best of such counsel's knowledge, include all documents required to be filed as exhibits thereto, excluding the Prospectus and any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to which no opinion need be given; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Association to be issued pursuant to the Plan. (~~viii~~xi) The execution and delivery of this Agreement and the consummation of the transactions contemplated ~~hereby~~ hereby, (A) have been duly and validly authorized by all necessary ~~corporate~~ action on the part of each of the ~~Primary Parties;~~ Company and the Association, and this Agreement constitutes ~~a valid~~the legal, ~~legal~~ valid and binding ~~obligation~~ agreement of each of the ~~Primary Parties~~Company and the Association, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) to the ~~extent that~~ best of such counsel's knowledge, will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Association pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Association is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business of the Company and the Association, taken as a whole, and (C) will not result in any violation of the provisions of ~~Sections 11 and 12 hereof~~ the articles or certificate of incorporation, charter, as the case may ~~be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws~~be, or ~~other laws affecting~~ bylaws of the ~~enforcement of creditors’ rights generally,~~ Company 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)~~Association. (ixxii) The ~~Plan~~ Prospectus has been duly ~~adopted~~ authorized 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 OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the ~~certificate~~ best of ~~incorporation~~such counsel's knowledge, ~~charters and bylaws of each of~~ threatened, by the ~~MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~OTS to revoke such authorization. (xxiii) The ~~Conversion~~Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor that require notice initiated or, 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~~ best of such counsel's knowledge, threatened 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 replacedCommission. (xixiv) 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 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,~~ Shares and the consummation of the Conversion, except as may be required under the ~~state~~ securities or ~~“blue sky”~~ 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 opinions rendered by such counsel and Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP 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~~Registration Statement became effective, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy~~ Registration Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, ~~notes to financial statements, financial tables and other financial~~ appraisal and statistical data included ~~therein and the appraisal valuation and the business plan~~ therein, as to which ~~counsel~~ no opinion need ~~express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xvii~~be rendered) 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~~xvi) ~~There~~ The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory and regulatory requirements. (xvii) To the best of such counsel's knowledge, there are no legal or governmental proceedings ~~pending~~pending or threatened against or affecting the Company or the Association that are required, orindividually or in the aggregate, to ~~such counsel’s knowledge~~be disclosed in the Registration Statement and Prospectus, ~~threatened (i) asserting~~ other than those disclosed therein, and all pending legal or governmental proceedings to which the ~~invalidity of this Agreement or (ii) seeking to prevent the Conversion~~ Company or the ~~offer~~Association is a party or to which any of their property is subject which are not described in the Registration Statement, ~~sale or issuance of~~ including ordinary routine litigation incidental to the ~~Shares~~business, are, considered in the aggregate, not material. (~~xix~~xviii) The information in the Prospectus describing the liquidation account under the captions ~~“Supervision~~ "The Conversion - Effects of Conversion - Effect on Liquidation Rights," and the information under "Risk Factors - Possible Adverse Income Tax Consequences of the Distribution of Subscription Rights," "Regulation,~~” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Eagle Bancorp” “~~" "The Conversion," "Restrictions on Acquisition of ~~Eagle Bancorp Montana, Inc.~~the Company and the Association,~~” “~~" "Description of Capital Stock of ~~Eagle Bancorp Montana, Inc. Following~~ the ~~Conversion,”~~ Company" and ~~“The Conversion and Offering,”~~ "Description of Capital Stock of the Association" to the extent that ~~such information~~ it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, ~~has been reviewed by such counsel and~~ is ~~accurate~~ complete in all material respects. (xxxix) ~~None~~ To the best of ~~the Primary Parties~~ such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be ~~registered~~ described or referred to in the Registration Statement or to be filed as ~~an investment company under~~ exhibits thereto other than those described or referred to therein or filed as exhibits thereto. (xx) The Plan has been duly authorized by the ~~Investment~~ Boards of Directors of the Company ~~Act~~ and the Association; the Association's charter has been amended, effective upon consummation of ~~1940~~the Conversion and the filing of such amended charter with the OTS, to authorize the issuance of permanent capital stock; to the best of such counsel's knowledge, the Company and the Association have conducted the Conversion in all material respects in accordance with applicable requirements of the Plan, the Conversion Regulations, and all other applicable regulations, decisions and orders thereunder, including all material applicable terms, conditions, requirements and conditions precedent to the Conversion imposed upon the Company or the Association by the OTS and no order, to the best of such counsel's knowledge, has been issued by the OTS to suspend the Offerings and, no action for such purpose has been instituted or, to the best of such counsel's knowledge threatened by the OTS; and, to the best of such counsel's knowledge, no person has sought to obtain review of the final action of the OTS in approving the Plan. (xxi) ~~None~~ To the best of such counsel's knowledge and information, each of the ~~Primary Parties~~ Company and the Association have obtained all licenses, permits and other governmental approvals and authorizations currently required for the conduct of their respective businesses as described in the Registration Statement and Prospectus, except for such licenses, permits, approvals or authorizations the failure of which to have would not result in a material adverse change in the financial condition, results of operations or the business of the Company and the Association, taken as a whole, and all such licenses, permits and other governmental authorizations are in full force and effect, and each of the Company and the Association is in all material respects complying therewith. (xxii) Neither the Company nor the Association 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 articles of incorporation or charter, as the case may be, ~~or the bylaws of any~~ upon consummation of the ~~Primary Parties~~Conversion nor, ~~(ii) any violation~~ to the best of ~~any applicable law, act, regulation, or to~~ such counsel’s 's knowledge, ~~order~~ in default (nor has any event occurred which, with notice or ~~court order~~lapse of time or both, ~~writ, injunction~~ would constitute a default) in the performance or ~~decree, and (iii) any violation~~ observance 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,~~ to which the Company or ~~incorporated~~ the Association is a party or by ~~reference in~~which the Company, the ~~Registration Statement, which violation~~ Association or the Subsidiary or any of their respective property may be bound in any respect that would have a ~~Material Adverse Effect. The opinion may be limited to matters governed by~~ material adverse effect upon the ~~laws~~ financial condition, results of operations or business of the ~~United States~~ Company and the ~~States of Delaware and Montana~~Association, taken as a whole. In ~~rendering~~ giving such opinion, such counsel may rely ~~(A)~~ as to all matters ~~involving~~ of fact on certificates of officers or directors of the ~~application~~ Company and the Association and certificates of ~~laws~~ public officials. All references "to such counsel's knowledge" in such opinion shall refer to the actual and conscious awareness of facts or other information of the individual attorneys who have been actively involved in the transactions contemplated by this Agreement or the preparation of such opinion . For purposes of such opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company or the Association, or their counsel, shall have received a copy of such proceedings, order, stop order or action. Such counsel may assume that any agreement is the valid and binding obligation of any ~~jurisdiction~~ parties to such agreement other than the ~~United States~~Company or the Association. In addition, ~~to the extent~~ such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The provide a letter ~~of ▇▇▇▇▇ Peabody LLP in form and substance to the effect~~ stating that during the preparation of the Registration ~~Statement~~ Statement, Conversion Application and the Prospectus, ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ such counsel participated in conferences with certain officers of and other representatives of the ~~Primary Parties~~Association and the Company, representatives of the Agent, counsel to the Agent, representatives of the independent public accountants for the ~~Primary Parties~~ Association and ~~representatives of~~ the ~~Agent~~ Company at which the contents of the Registration ~~Statement~~ Statement, the Conversion Application 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~~ they are not passing upon and do not assume the ~~opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified~~ responsibility for the accuracy, completeness or fairness of the statements contained in the Registration ~~Statement~~ Statement, the Conversion Application and Prospectus, on the basis of the ~~foregoing~~foregoing (relying as to factual matters on certificates of officers and other factual representations by the Association and the Company), nothing has come to ~~the~~ such counsel's attention ~~of ▇▇▇▇▇ Peabody LLP~~ that caused ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ them to believe that the Registration Statement at the time it was declared effective by the ~~Commission~~ SEC, or the Prospectus as of its date and as of the ~~date~~ Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such ~~letter~~ counsel shall express no comment or ~~that~~ opinion with respect to the ~~General Disclosure Pack~~financial statements, schedules and other financial information and statistical and stock valuation data included, or statistical methodology employed, in the Registration Statement, Conversion Ap

Appears in 1 contract

Sources: Agency Agreement (Grand Central Financial Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the ~~Primary~~ Brookline Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and correct, the condition that the ~~Primary~~ Brookline Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Brookline Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Brookline Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Montana~~ 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~~ On the date hereof, the Bank is a ~~duly organized and~~ validly existing ~~federally-~~federally chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~federally-~~federally chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~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; ~~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. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage. (iii) The 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,~~ MHC and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by under applicable federal law. To the best of such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ 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 's knowledge the Mid-Tier Holding Company and the Bank ~~are complying~~ comply therewith in all material respects. (viiv) ~~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 to such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~vii~~v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the ~~Offer Shares~~ shares to be subscribed for in the ~~Offering~~ 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 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 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. (~~viii~~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 ~~Primary~~ Brookline Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the ~~Primary~~ Brookline Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ ' rights generally, or the rights of creditors of savings ~~institutions~~ banks or financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and (~~including~~ 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 ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (ixvii) 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~~ MHC in the manner required by the Conversion Regulations and the ~~certificate of incorporation, charters~~ MHC's charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (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. (xiviii) The Conversion ~~Application,~~ Application and 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,~~ 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. (xiiiix) The Registration Statement has become effective under the 1933 ~~Act~~Act and to such counsel's knowledge, ~~and~~ no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvx) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvi~~xi) At the time the ~~Applications were approved and as of the Closing Date~~Conversion Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement~~ 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 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xvii~~xii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xviii~~xiii) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (~~xix~~xiv) 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~~Brookline Bancorp, Inc.,~~” “~~" "Description of Capital Stock of ~~Eagle Bancorp Montana~~Brookline Bancorp, ~~Inc. Following the~~ Inc.," and "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. (xxxv) None of the ~~Primary~~ Brookline Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxi~~xvi) None of the ~~Primary~~ Brookline Parties is in violation of its ~~certificate~~ Certificate of ~~incorporation~~ Incorporation or its charter, as the case may be, or its bylaws or, to the best of such counsel’s '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~~ Brookline Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the ~~certificate~~ articles of incorporation or charter, as the case may be, or the bylaws of any of the ~~Primary~~ Brookline Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s '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 own opinion on the opinion(s) of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ [and/or local counsel], whose opinion(s) shall expressly authorize such reliance. The opinion may be limited to matters governed by the laws of the United States and the ~~States~~ corporate laws of ~~Delaware and Montana~~the State of Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the ~~Primary~~ Brookline Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the ~~Primary~~ Brookline Parties. In rendering such opinion, all statements contained therein "to our knowledge" or "to our attention" or "known to us" means the actual knowledge, following reasonable investigation, of the attorneys who have worked on the transactions contemplated herein and, in the case of the opinion rendered in Section 10(b)(1)(xiii), including a docket search in the counties in which the Brookline Parties are located. The opinion of such counsel for the ~~Primary~~ Brookline Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ~~Peabody LLP in form and substance to the effect~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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 ~~Primary~~ Brookline Parties, counsel to the Agent, representatives of the independent public accountants for the ~~Primary~~ Brookline Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~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~~ & ▇▇▇▇▇▇ that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus, the appraisal valuation or the business plan). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Brookline Parties delivered pursuant hereto or as such counsel may reasonably request. (4) A Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ relating to the offering, including Agent's participation therein, and should be furnished to Agent with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall state Agent may rely. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the common stock under applicable state securities law. (c) Concurrently with the execution of this Agreement, the Agent shall receive a letter or from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is a firm of independent public accountants within the ~~General Disclosure Pack~~meaning of the 1933 Act and the regulations promulgated thereunder, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP's opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with 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) consistin

Appears in 1 contract

Sources: Agency Agreement (Brookline Bancorp Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the ~~Primary~~ Alpena Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and correct, the condition that the ~~Primary~~ Alpena Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion ~~Application,~~ Application and Holding Company ~~Application and the Merger~~ Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Alpena Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the ~~Primary~~ Alpena Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of Luse, Gorman, ▇~~▇▇▇▇~~ ▇▇▇▇▇▇▇ ~~LLP~~ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Delaware~~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 ~~Montana~~ 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 MHC is a mutual holding company duly organized and validly existing and in good standing 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 and is 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. (iii) The Bank is a duly organized and validly existing federally-chartered stock savings ~~bank~~association, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings ~~bank~~association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the 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~~ . FSMC and ICA are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under ~~the laws of the United States, with corporate power~~ state and ~~authority to own its properties and~~ applicable federal law to conduct ~~its business as described in~~ the ~~Prospectus and is duly qualified to transact business in each other jurisdiction~~ businesses in which ~~the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect~~they now engage. (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,~~ MHC and the Bank, as described in the ~~Prospectus and the General Disclosure Package~~Prospectus, are permitted by under applicable federal law. To the best of such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ 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 's knowledge the Mid-Tier Holding Company and the Bank ~~are complying~~ comply therewith in all material respects. (viv) The Bank is a member of the FHLB of ~~Seattle~~Pittsburgh. 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, to such counsel’s knowledge,~~ or threatened. (~~vii~~vi) Upon consummation of the ~~Conversion~~Conversion and the contribution of the Foundation Shares to the Foundation, (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~~ 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; (cb) 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; (c) the Foundation Shares to be issued to the Foundation will have been duly and validly authorized for issuance, and when issued and contributed by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares, the Exchange Shares and the Foundation 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. (~~viii~~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~~ Alpena Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the ~~Primary~~ Alpena Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ ' rights generally, or the rights of creditors of savings ~~institutions~~ banks or financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and (~~including~~ 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 ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (ixviii) 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~~ MHC in the manner required by the Conversion Regulations and the ~~certificate of incorporation, charters~~ MHC's charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (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. (xiix) The Conversion ~~Application,~~ Application and 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, the contribution of the Foundation 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. (xiiix) The Registration Statement has become effective under the 1933 ~~Act~~Act and to such counsel's knowledge, ~~and~~ no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or 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, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLP to the Primary Parties with respect to such matters. (xvxi) 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 are in due and proper form. (~~xvi~~xii) At the time the ~~Applications were~~ Conversion Application was approved and as of the Closing Date, the ~~Applications~~ Conversion Application (as amended or supplemented), the Prospectus (as amended or supplemented), the ~~Voting~~ Members’ ' Proxy Statement (as amended or supplemented) and the Stockholders’ ' Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xvii~~xiii) 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~~xiv) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares or the issuance of the Exchange Shares or the Foundation Shares. (~~xix~~xv) 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) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇▇ Peabody LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ 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 Packcaptions

Appears in 1 contract

Sources: Agency Agreement (Alpena Bancshares Inc)

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