Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing are subject to the conditions that (i) all representations and warranties and other statements of the Amalgamated Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Time, true and correct in all material respects, and (ii) the Amalgamated 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 Offering Statement shall have been declared qualified by the Commission, and no stop order or other action suspending the qualification of the Offering Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Amalgamated Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement or the consummation of the Conversion shall have been issued or proceedings therefor initiated or, to any of the Amalgamated Parties’ knowledge, threatened by the Department, the Commission, or any other governmental body. The Conversion Application shall have been approved by the Department. (b) At the Closing Time, the Agent shall have received: (1) An opinion or opinions, dated as of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇, P.C., as counsel to the Amalgamated Parties, in form and substance satisfactory to counsel for the Agent, to the effect that: (i) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Statement, 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 ACIC was a mutual insurance company, and, after the Closing Time, ACIC will be a duly incorporated and validly subsisting District of Columbia stock insurance company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Statement and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. (iii) The authorized capital stock of HoldCo consists of 9,000,000 shares of Common Stock, $0.01 par value per share, and 1,000,000 shares of preferred stock, no par value, and HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the shares of Common Stock of HoldCo to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (b) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan. (iv) 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 Amalgamated Parties; and this Agreement constitutes a valid and legal obligation of each of the Amalgamated Parties. (v) The Plan has been duly adopted by the Board of Directors of ACIC in the manner required by the Official Code. (vi) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Amalgamated Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered. (vii) The Offering Statement has become qualified under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the qualification of the Offering Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened. (viii) The description of the shares of Common Stock of HoldCo contained in the Offering Statement and the Offering Circular, insofar as such statements purport to summarize certain provisions of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof. (ix) At the time that the Offering Statement became qualified, the Offering Statement, including the Offering Circular contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation, as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations. (x) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares. (xi) The information in the Offering Statement under the captions “BUSINESS — Regulation,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form 1-A. (xii) None of the Amalgamated Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended. (xiii) To such counsel’s knowledge, none of the Amalgamated Parties is in violation of its Organizational Documents as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the Amalgamated Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents of any of the Amalgamated Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of any other state. (2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Statement and the Offering Circular, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Parties, representatives of the independent public accounting firm for the Amalgamated Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties that caused them to believe that (i) the Offering Statement at the time it was ordered qualified by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Statement, the General Disclosure Package and the Offering Circular, 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 Offering Statement, Offering Circular or General Disclosure Package). (3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated 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. (c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto. (d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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. (e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application. (f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement. (g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering. (h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they
Appears in 2 contracts
Sources: Agency Agreement (Amalgamated Specialty Group Holdings, Inc.), Agency Agreement (Amalgamated Specialty Group Holdings, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization are subject to the conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing TimeDate, true and correct in all material respectscorrect, and (ii) the Amalgamated condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) The Offering Conversion shall have been approved by the Department and the OTS. The Registration Statement shall have been declared qualified effective by the Commission, the Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to any of the Amalgamated Primary Parties’ best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefor therefore initiated or, to any of the Amalgamated Primary Parties’ best knowledge, threatened by the Department, the OTS, the Commission, or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, the Agent shall have received:
(1) An opinion or opinionsThe favorable opinion, dated as of the Closing TimeDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as and/or local counsel acceptable to the Amalgamated Parties, Agent in form and substance satisfactory to counsel for the Agent, Agent to the effect that:
(i) HoldCo The Company is a corporation duly incorporated organized and validly subsisting existing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering StatementProspectus, and, to its knowledge, is and will be duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) Prior to the Closing Time ACIC was The Bank is a duly organized and validly existing Pennsylvania-chartered savings association in mutual insurance company, form and, after following the Closing TimeConversion, ACIC will be a duly organized and validly existing Pennsylvania-chartered savings association in stock form with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the Department and the OTS; the issuance and sale of the Common Stock of the Bank to the Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable, and will be owned of record and beneficially by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to a federally chartered savings association. To the best of such counsel’s knowledge, each of the Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, all such licenses, permits and other governmental authorization are in full force and effect, and the Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Pittsburgh and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel’s knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
(v) The Charitable Foundation has been duly authorized and incorporated and is validly subsisting District existing as a non-stock corporation in good standing under the laws of Columbia stock insurance company the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Statement Prospectus and no approvals are required to establish the Charitable Foundation and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and contribute the shares of Common Stock thereto as described in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which Prospectus other than those imposed by the failure to qualify would have a Material Adverse EffectDepartment or the OTS.
(iiivi) The authorized capital stock of HoldCo the Company consists of 9,000,000 shares of Common Stock, $0.01 par value per share, Stock and 1,000,000 shares of preferred stock, no par value, and HoldCo has value per share; no shares of capital Common Stock or preferred stock will be issued and outstandingoutstanding prior to the Closing Date. Immediately upon consummation of the OfferingReorganization, (a) the issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,”; (b) the shares of Common Stock of HoldCo the Company to be subscribed for or for which orders are placed in the Offering and the Charitable Shares issued to the Charitable Foundation will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo the Company pursuant to the Plan against payment of the consideration (or contributed to the Charitable Foundation as it relates to the Charitable Shares) calculated as set forth in the Plan, will be fully paid and nonassessable; and (bc) the issuance of the shares of Common Stock of HoldCo will and the Charitable Shares are not be subject to preemptive rights under the articles of incorporation charter or bylaws of HoldCoany of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(ivvii) 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 Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vviii) The Plan has been duly adopted by the Board of Directors of ACIC the Bank and by the corporators of the Bank in the manner required by the Official CodeConversion Regulations and the Bank’s charter and bylaws.
(viix) Upon consummation of The Reorganization, including the Offering, to the knowledge of such counsel, (a) Conversion and the Offering was made in all material respects effected in accordance with the PlanPlan and all applicable laws, (b) including statutes, regulations, decisions and orders; and all terms, conditions, requirements and provisions with respect to the Conversion and Offering Reorganization imposed by the Commission Commission, the Department, the OTS, or the Department any other governmental agency, if any, were complied with by the Amalgamated Parties Bank in all material respects or appropriate waivers were obtained, obtained and (c) all notice and waiting periods were satisfied satisfied, waived or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offeredelapsed.
(viix) The Offering Statement Applications have been approved by the Department and the OTS and subject to the satisfaction of any conditions set forth in such approvals and clearance under applicable securities laws, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Reorganization.
(xi) The purchase by the Company of all of the issued and outstanding Common Stock of the Bank has become qualified under been authorized by the 1933 Act andDepartment and the OTS, and no action has been taken, or to such counsel’s knowledge after making inquiry of knowledge, is pending or threatened, to revoke any such authorization or approval.
(xii) The Registration Statement is effective under the Commission, and based upon representations made by staff of the Commission1933 Act, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(viiixiii) The description material tax consequences of the Reorganization are set forth in the Prospectus under the caption “Summary - Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the caption “Summary - Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel to the Primary Parties with respect to such matters.
(xiv) The terms and provisions of the shares of Common Stock of HoldCo conform to the description thereof contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport and the forms of certificates proposed to summarize certain provisions be used to evidence the shares of the articles of incorporation Common Stock are in due and bylaws of HoldCo, provide a fair summary thereofproper form.
(ixxv) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the Department, and the OTS, as applicable, except as modified or waived in writing by the Department and the OTS, as applicable (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Department and the OTS, as applicable, approving the Applications.
(xvi) At the time that the Offering Registration Statement became qualifiedeffective and as of the Closing Date, the Offering Registration Statement, including the Offering Circular Prospectus contained therein, 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, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulationsrules and regulations promulgated thereunder.
(xxvii) To such counsel’s knowledge, there are no legal or governmental proceedings pending pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares.
(xixviii) The information in the Offering Statement Prospectus under the captions “BUSINESS — Regulation,” “Federal and State Taxation,” “Restrictions on Acquisition of ESSA Bancorp, Inc.,” “Description of Capital Stock” and “DESCRIPTION OF OUR CAPITAL STOCKThe Conversion,” to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been reviewed by such counsel and is accurate in all material respects the information required to be presented in Form 1-A.respects.
(xiixix) None of the Amalgamated Primary Parties is are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixx) To such counsel’s knowledge, The Bank has duly adopted a Pennsylvania stock charter and bylaws effective upon consummation of the Reorganization and none of the Amalgamated Primary Parties is in violation of its Organizational Documents as in effect at the Closing Time. In additioncharter or its bylaws or, to such counsel’s knowledge, any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a material adverse effect on the financial condition of the Primary Parties considered as one enterprise, or on the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise. In addition, the execution and delivery of and performance under this Agreement by the Amalgamated Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents charter or the bylaws of any of the Amalgamated Primary Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, such counsel may rely as to matters of fact, without independent investigationto the extent such counsel deems proper, on certificates of responsible officers of the Amalgamated Primary Parties (to the extent relevant) and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited hereunder by counsel to the laws Primary Parties. The opinion of such counsel for the Commonwealth of Pennsylvania and Primary Parties shall state that it has no reason to believe that the federal securities laws of the United States of America, and such opinion will Agent is not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of any other statejustified in relying thereon.
(2) A The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC addressed to the Agent P.C. to the effect that during the preparation of the Offering Registration Statement and the Offering CircularProspectus, representatives of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC P.C. participated in conferences with certain officers of and other representatives of the Amalgamated Primary Parties, counsel to the Agent, representatives of the independent public accounting firm for the Amalgamated Primary Parties and representatives of the Agent at which the contents of the Offering Registration Statement and the Offering Circular Prospectus and related matters were discusseddiscussed and has considered the matters required to be stated therein and the statements contained therein and, and although (without limiting the opinions provided pursuant to Section 10(b)(19(b)(1)) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Registration Statement and Offering CircularProspectus, on the basis of the information obtained in the course of engagement as counselforegoing, nothing has come to the attention of the representatives of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC providing services to the Amalgamated Parties P.C. that caused them ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that (i) the Offering Registration Statement and the Prospectus at the time it was ordered qualified declared effective by the Commission, (ii) Commission and as of the date of such letter or that the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing 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 not assume any responsibility for the accuracy, completeness express no comment or fairness of the statements contained in the Offering Statement, the General Disclosure Package and the Offering Circular, and counsel need not express any belief opinion with respect to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal or valuation methodology employed, or information concerning internal controls over financial reporting contained in, in the Offering Registration Statement, Offering Circular Prospectus or General Disclosure Package).
(3) A blue sky memorandum from The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & Sinon LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ Pomerenck & ▇▇▇▇▇▇, PC addressed to the Amalgamated Parties and the Agent P.C. relating to the Offeringoffering relating to the offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ Pomerenck & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The Blue Sky Memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from S.R. ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇▇▇ LLP., dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
such letter (di) At the Closing Time, the Agent shall receive a letter from confirming that S.R. ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇., is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder, and no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, (ii) stating in effect that in S.R. ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇, ▇▇ Industrial Average, (B) lasting no longer than until .▇.’s opinion 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment statements of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they Bank inclu
Appears in 1 contract
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 conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, are at and as of the commencement of the Offering Offerings and at and as of the Closing TimeDate, true and correct in all material respects, and (ii) the Amalgamated condition that the Primary Parties shall have performed in all material respects all of their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) The Offering Registration Statement shall have been declared qualified effective by the CommissionCommission and the Application approved by the OTS not later than 5:30 p.m. on the date of this Agreement, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Amalgamated Parties’ Company's or the Bank's best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion shall have been issued or proceedings therefor initiated or, to any of the Amalgamated Parties’ Company's or Bank's best knowledge, threatened by the DepartmentOTS, the Commission, or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, the Agent shall have received:
(1) An opinion or opinionsThe favorable opinion, dated as of the Closing TimeDate, of ▇▇▇▇▇ ▇▇▇ & ▇▇▇, P.C., as special counsel to for the Amalgamated Primary Parties, in form and substance satisfactory to counsel for the Agent, Agent to the effect that:
(i) HoldCo The Holding Company is a corporation duly incorporated organized and validly subsisting existing and in good standing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering StatementProspectus, and, and to its knowledge, such counsel's knowledge is duly qualified to transact business and will be is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Holding Company.
(ii) Prior to The Bank is a duly organized and validly existing federally chartered mutual savings bank and, at the Closing Time ACIC was a mutual insurance companyDate, andupon satisfaction of the conditions set forth in the Plan, after the Closing Time, ACIC will be become a duly incorporated organized and validly subsisting District of Columbia existing federally chartered stock insurance company savings bank with corporate full power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, to its knowledgeupon payment therefor in accordance with the terms of the Plan, is duly qualified to transact business will be validly issued, fully paid and in good standing in each jurisdiction in which nonassessable; and will be owned of record and beneficially by the conduct Holding Company, free and clear of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effectany mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member of the FHLB of Pittsburgh and the savings accounts of the Bank are insured by the FDIC up to the maximum amount allowed by law and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; and the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion - Effects of Conversion to Stock Form on Depositors and Borrowers of the Bank - Liquidation Rights" has been reviewed by such counsel and, to the extent that such information constitutes matters of law or legal conclusions, is accurate in all material respects.
(iv) The MHC has been duly organized and is validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon Conversion, the authorized, issued and outstanding capital stock of HoldCo consists of 9,000,000 the Holding Company and the Bank will be as set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock, $0.01 par value per share, and 1,000,000 shares of preferred stock, no par value, and HoldCo has no shares of capital stock Stock have been or will be issued and outstanding. Immediately upon consummation of outstanding prior to the OfferingClosing Date, (a) the shares of Common Stock of HoldCo the Holding Company to be subscribed for or for which orders are placed in the Offering will Offerings have been duly and validly authorized for issuance, and when issued and delivered by HoldCo 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 (b) the issuance of the shares of Common Stock of HoldCo will is not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other documentrights, except for the subscription rights under the Plan.
(ivvi) 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 Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vvii) The Plan has been duly adopted by the Board of Directors of ACIC in the manner as required by the Official Codedirectors of the Bank and members of the Bank.
(viviii) Upon Subject to the satisfaction of the conditions to the OTS's approval of the Conversion, the MHC Application and the Holding Company Application to acquire the Bank, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering, to the knowledge of such counsel, Conversion (a) the Offering was made in all material respects in accordance other than compliance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Amalgamated Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky Blue Sky laws as to which such counsel need express no opinion and other than as may be required under the rules and regulations of the NASD or foreign securities laws of various jurisdictions in which the Shares will be offeredNasdaq System).
(viiix) The Offering Statement Application, including the Prospectus as filed with the OTS, has become qualified been approved by the OTS. The OTS has issued its order of approval under the 1933 Act andsavings and loan holding company provisions of the HOLA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS and no action has been taken, or, to such counsel’s knowledge after making inquiry of 's knowledge, is pending or threatened, to revoke any such authorization or approval.
(x) The Registration Statement has become effective under the Commission, and based upon representations made by staff of the Commission1933 Act, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to the best of such counsel’s 's knowledge, no proceedings for that purpose have been instituted or threatened.
(viiixi) The description material tax consequences of the Conversion are set forth in the Prospectus under the caption "The Conversion-Income Tax Consequences." The information in the Prospectus under the caption "The Conversion-Income Tax Consequences" has been reviewed by such counsel and fairly describes such opinions rendered by ▇▇▇▇▇ ▇▇▇▇ and KPMG Peat Marwick, LLP to the Primary Parties with respect to such matters.
(xii) The terms and provisions of the shares of Common Stock of HoldCo conform to the description thereof contained in the Offering Registration Statement and the Offering Circular, insofar as Prospectus and such statements purport to summarize certain provisions description describes in all material respects the rights of the articles holders thereof, the information in the Prospectus under the captions "Restrictions on Acquisitions of incorporation Stock and bylaws Related Takeover Defensive Provisions" and "Description of HoldCoCapital Stock," to the extent that they constitute matters of law or legal conclusions, provide a fair summary thereofhas been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(ixxiii) At the time the Application, including the Prospectus contained therein, was approved, the Application (as amended or supplemented) complied as to form in all material respects with the requirements of the Conversion Regulation 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 as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Application or in approving the Holding Company Application.
(xiv) At the time that the Offering Registration Statement became qualified, effective (i) the Offering Statement, including the Offering Circular contained therein, Registration Statement (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, valuation as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the rules and regulations promulgated thereunder; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation, as to which counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder, the Conversion Regulations, the rules, regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS.
(xxv) To the best of such counsel’s 's knowledge, there are no legal or governmental proceedings pending 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.
(xixvi) The information in the Offering Statement Prospectus under the captions “BUSINESS — "Regulation,” " "The Conversion" and “DESCRIPTION OF OUR CAPITAL STOCK"Legal Matters,” " to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been prepared by such counsel and is accurate in all material respects (except as to the information required financial statements and other financial data included therein as to be presented in Form 1-A.
(xii) None of the Amalgamated Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amendedwhich such counsel need express no opinion).
(xiiixvii) To such the best of counsel’s 's knowledge, none the Primary Parties have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Amalgamated Primary Parties considered as one enterprise, or on the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, and all such licenses, permits and other governmental authorizations are in full force and effect and the Primary Parties are in all material respects complying therewith.
(xviii) The Holding Company, the MHC nor the Bank is in violation of its Organizational Documents as certificate of incorporation or its charter, respectively, or its bylaws (and the Bank will not be in effect at violation of its charter or bylaws in stock form upon consummation of the Closing Time. In addition, Conversion) or to the best of such counsel’s 's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Primary Parties considered as one enterprise, or on the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise; the execution and delivery of and performance under this Agreement by the Amalgamated Primary Parties, the incurrence of the obligations herein set forth herein and the consummation of the transactions contemplated herein herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Primary Parties which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Primary Parties are a party or by which any of them may be bound, or to which any of the property or assets of the Primary Parties are subject. In addition, such action will not result in any material violation of the provisions of the Organizational Documents certificate of any incorporation or bylaws of the Amalgamated Primary Parties or any material violation of any applicable law, act, regulation, regulation or to such counsel’s 's knowledge, order or court order, writ, injunction or decree. In rendering such opinion.
(xix) To the best of counsel's knowledge, such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Primary Parties (to the extent relevant) and public officials, provided copies are not in violation in any material respect of any such certificates are delivered directive from the OTS or the FDIC to Agent together with make any material change in the opinion to be rendered hereunder. Such opinion may be limited to the laws method 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 any other stateconducting their business.
(2) A The letter of ▇▇▇▇▇ ▇▇▇ & ▇▇▇, PC addressed to special counsel for the Agent Holding Company and the Bank, in form and substance to the effect that that: In addition, during the preparation of the Offering Registration Statement and the Offering CircularProspectus, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC ▇ participated in conferences with certain officers of and other representatives of the Amalgamated Primary Parties, counsel to the Agent, representatives of the independent public accounting firm accountants for the Amalgamated Primary Parties and representatives of the Agent at which the contents of the Offering Registration Statement and the Offering Circular Prospectus and related matters were discusseddiscussed and, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has ▇ is not independently verified passing upon and does not assume the accuracy, completeness or fairness accuracy of the statements contained in the Offering Registration Statement and Offering CircularProspectus, on the basis of the information obtained in foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the course of engagement as counselPrimary Parties), nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties ▇ that caused them ▇▇▇▇▇ ▇▇▇▇ to believe that (i) the Offering Registration Statement at the time it was ordered qualified declared effective by the Commission, (ii) SEC or the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, Prospectus as of its date and as of the Closing Timedate, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that counsel need not assume any responsibility for the accuracy, completeness express no comment or fairness of the statements contained in the Offering Statement, the General Disclosure Package and the Offering Circular, and counsel need not express any belief opinion with respect to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal or valuation methodology employed, in the Registration Statement or information concerning internal controls over financial reporting contained inProspectus). The opinion shall be limited to matters governed by the laws of the United States or the Commonwealth of Pennsylvania. In rendering such opinion, such counsel may rely (A) as to matters involving the Offering Statementapplication of laws of any jurisdiction other than the United States or the Commonwealth of Pennsylvania, Offering Circular to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and the Bank and public officials; provided copies of any such opinion(s) or General Disclosure Package)certificates of public officials are delivered to you together with the opinion to be rendered hereunder by special counsel to the Company and the Bank. The opinion of such counsel for the Company shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(3) A blue sky memorandum from The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated Parties and the Agent relating to the OfferingP.C., 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to counsel for the Agent, in the form set forth in Exhibit A hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to such matters as the Conversion Application.
(f) Prior to and at the Closing TimeAgent may reasonably require, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they opinion may rely a
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing are subject to the conditions that (i) all representations and warranties and other statements of the Amalgamated Nodak Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Time, true and correct in all material respects, and (ii) the Amalgamated Nodak 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 Offering Registration Statement shall have been declared qualified effective by the Commission, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Amalgamated Nodak Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion shall have been issued or proceedings therefor initiated or, to any of the Amalgamated Nodak Parties’ knowledge, threatened by the Department, the Commission, or any other governmental body. The Conversion Application shall have been approved by the DepartmentCommissioner.
(b) At the Closing Time, the Agent shall have received:
(1) An opinion or opinions, dated as of the Closing Time, of D▇▇▇▇▇ & Whitney or S▇▇▇▇▇▇ & ▇L▇▇, P.C., as counsel to the Amalgamated Nodak Parties, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) HoldCo Holdings is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth State of PennsylvaniaNorth Dakota, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering StatementProspectus, and, to its knowledge, and 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 ACIC Nodak Mutual was a mutual insurance company, and, company and after the Closing Time, ACIC Time Nodak Insurance Company will be a duly incorporated and validly subsisting District of Columbia North Dakota stock insurance company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, andand is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect (as defined in Section 6(m)).
(iii) Nodak Mutual Group is a duly incorporated North Dakota corporation, validly existing under the laws of the State of North Dakota, with corporate power and authority to own, lease and operate its knowledgeproperties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iiiiv) The authorized capital stock of HoldCo Holdings consists of 9,000,000 25,000,000 shares of Common Stock, $0.01 par value per share, and 1,000,000 5,000,000 shares of preferred stock, no par value, and HoldCo Holdings has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the shares of Common Stock of HoldCo Holdings to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo Holdings pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (b) the issuance of the shares of Common Stock of HoldCo Holdings will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCoHoldings, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(ivv) 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 Amalgamated Nodak Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated Nodak 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.
(vvi) The Plan has been duly adopted by the Board of Directors of ACIC Nodak Mutual in the manner required by the Official Century Code.
(vivii) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Amalgamated Nodak Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered.
(viiviii) The Offering Registration Statement has become qualified effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(viiiix) The description of the shares of Common Stock of HoldCo Holdings contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport to summarize certain provisions of the articles certificate of incorporation and bylaws of HoldCoHoldings, provide a fair summary thereof.
(ixx) At the time that the Offering Registration Statement became qualifiedeffective, the Offering Registration Statement, including the Offering Circular 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 fairness opinion, the appraisal valuation, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations.
(xxi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xixii) The information in the Offering Statement Prospectus under the captions “BUSINESS — Regulation,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form 1-A.S-1.
(xiixiii) None of the Amalgamated Nodak Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixiv) To such counsel’s knowledge, none of the Amalgamated Nodak Parties is in violation of its Organizational Documents as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the Amalgamated Nodak Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents of any of the Amalgamated Nodak Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Nodak Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth State of Pennsylvania North Dakota 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 any other state.
(2) A letter of ▇S▇▇▇▇▇▇ & ▇L▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Registration Statement and the Offering CircularProspectus, representatives of ▇S▇▇▇▇▇▇ & ▇L▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Nodak Parties, representatives of the independent public accounting firm for the Amalgamated Nodak Parties and representatives of the Agent at which the contents of the Offering Registration Statement and the Offering Circular Prospectus and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇S▇▇▇▇▇▇ & ▇L▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Registration Statement and Offering CircularProspectus, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇S▇▇▇▇▇▇ & ▇L▇▇, PC providing services to the Amalgamated Nodak Parties that caused them to believe that (i) the Offering Registration Statement at the time it was ordered qualified effective by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering CircularProspectus, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Registration Statement, the General Disclosure Package and the Offering CircularProspectus, 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 Offering Registration Statement, Offering Circular Prospectus or General Disclosure Package).
(3) A blue sky memorandum from ▇S▇▇▇▇▇▇ & ▇L▇▇, PC addressed to the Amalgamated Nodak 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ WeiserMazars LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A B hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ WeiserMazars 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Nodak Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement Prospectus and at the time the Offering Statement Prospectus became authorized for final use, the Offering Statement 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 Offering Statement Prospectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Offering Statement that Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Nodak Parties; (iii) since the respective dates as of which information is given in the Offering Registration Statement, the General Disclosure Package and the Offering CircularProspectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Nodak Parties independently, or of the Amalgamated Nodak 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 Amalgamated Nodak 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 qualification effectiveness of the Offering 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 Offering Statement 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 Commissioner Director with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Nodak Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Registration Statement and Offering CircularProspectus, 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 Offering Registration Statement and the Offering CircularProspectus, and since the respective dates as of which information is given in the Offering Registration Statement and the Offering CircularProspectus, 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 Offering Registration Statement and the Offering CircularProspectus, 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 Offering StatementProspectus.
(g) At or prior to the Closing Time, the Department Commissioner shall have issued a letter or order to ACICNodak Mutual, which shall have the force of approving the Conversion and Offering.
(h) 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they mora
Appears in 1 contract
Sources: Agency Agreement (NI Holdings, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing are subject to the conditions that (i) all representations and warranties and other statements of the Amalgamated Nodak Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Time, true and correct in all material respects, and (ii) the Amalgamated Nodak 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 Offering Registration Statement shall have been declared qualified effective by the Commission, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Amalgamated Nodak Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion shall have been issued or proceedings therefor initiated or, to any of the Amalgamated Nodak Parties’ knowledge, threatened by the Department, the Commission, or any other governmental body. The Conversion Application shall have been approved by the DepartmentCommissioner.
(b) At the Closing Time, the Agent shall have received:
(1) An opinion or opinionsThe opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇, P.C._______________________, as counsel to the Amalgamated Nodak Parties, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) HoldCo Holdings is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth State of PennsylvaniaNorth Carolina, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering StatementProspectus, and, to its knowledge, and 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 ACIC Nodak Mutual was a mutual insurance company, and, company and after the Closing Time, ACIC Time Nodak Insurance Company will be a duly incorporated and validly subsisting District of Columbia North Dakota stock insurance company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, andand is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect (as defined in Section 6(m)).
(iii) Nodak Mutual Group is a duly incorporated North Dakota corporation, validly existing under the laws of the State of North Dakota, with corporate power and authority to own, lease and operate its knowledgeproperties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iiiiv) The authorized capital stock of HoldCo Holdings consists of 9,000,000 25,000,000 shares of Common Stock, $0.01 par value per share, and 1,000,000 5,000,000 shares of preferred stock, no par value, and HoldCo Holdings has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the shares of Common Stock of HoldCo Holdings to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo Holdings pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (b) the issuance of the shares of Common Stock of HoldCo Holdings will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCoHoldings, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(ivv) 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 Amalgamated Nodak Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated Nodak 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.
(vvi) The Plan has been duly adopted by the Board of Directors of ACIC Nodak Mutual in the manner required by the Official Century Code.
(vivii) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Amalgamated Nodak Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered.
(viiviii) The Offering Registration Statement has become qualified effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(viiiix) The description of the shares of Common Stock of HoldCo Holdings contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport to summarize certain provisions of the articles certificate of incorporation and bylaws of HoldCoHoldings, provide a fair summary thereof.
(ixx) At the time that the Offering Registration Statement became qualifiedeffective, the Offering Registration Statement, including the Offering Circular 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 fairness opinion, the appraisal valuation, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations.
(xxi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xixii) The information in the Offering Statement Prospectus under the captions “BUSINESS — Regulation,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form 1-A.S-1.
(xiixiii) None of the Amalgamated Nodak Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixiv) To such counsel’s knowledge, none of the Amalgamated Nodak Parties is in violation of its Organizational Documents as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the Amalgamated Nodak Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents of any of the Amalgamated Nodak Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Nodak Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth State of Pennsylvania North Dakota 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 any other state.
(2) A letter of ▇S▇▇▇▇▇▇ & ▇L▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Registration Statement and the Offering CircularProspectus, representatives of ▇S▇▇▇▇▇▇ & ▇L▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Nodak Parties, representatives of the independent public accounting firm for the Amalgamated Nodak Parties and representatives of the Agent at which the contents of the Offering Registration Statement and the Offering Circular Prospectus and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇S▇▇▇▇▇▇ & ▇L▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Registration Statement and Offering CircularProspectus, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇S▇▇▇▇▇▇ & ▇L▇▇, PC providing services to the Amalgamated Nodak Parties that caused them to believe that (i) the Offering Registration Statement at the time it was ordered qualified effective by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering CircularProspectus, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Registration Statement, the General Disclosure Package and the Offering CircularProspectus, 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 Offering Registration Statement, Offering Circular Prospectus or General Disclosure Package).
(3) A blue sky memorandum from ▇S▇▇▇▇▇▇ & ▇L▇▇, PC addressed to the Amalgamated Nodak 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ WeiserMazars LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A B hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ WeiserMazars 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Nodak Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement Prospectus and at the time the Offering Statement Prospectus became authorized for final use, the Offering Statement 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 Offering Statement Prospectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Offering Statement that Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Nodak Parties; (iii) since the respective dates as of which information is given in the Offering Registration Statement, the General Disclosure Package and the Offering CircularProspectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Nodak Parties independently, or of the Amalgamated Nodak 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 Amalgamated Nodak 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 qualification effectiveness of the Offering 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 Offering Statement 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 Commissioner Director with respect to the Conversion Application.
(f) At the Closing Time, the Agent shall receive a letter addressed to the Agent from F▇▇▇▇▇▇ Financial, Inc. dated as of the Closing Date, (i) confirming that such firm is independent of the Nodak Parties and is experienced and expert in the area of valuation of insurance companies and insurance holding companies converting from mutual to stock form, (ii) stating that in its opinion the Appraisals comply in all material respects with the applicable requirements of the Century Code, and (iii) in its opinion of the pro forma market value of Nodak Mutual expressed in the Appraisals as most recently updated, remains in effect. [?]
(g) Prior to and at the Closing Time, none of the Amalgamated Nodak Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Registration Statement and Offering CircularProspectus, 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 Offering Registration Statement and the Offering CircularProspectus, and since the respective dates as of which information is given in the Offering Registration Statement and the Offering CircularProspectus, 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 Offering Registration Statement and the Offering CircularProspectus, 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 Offering StatementProspectus.
(gh) At or prior to the Closing Time, the Department Commissioner shall have issued a letter or order to ACICNodak Mutual, which shall have the force of approving the Conversion and Offering.
(hi) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they Ma
Appears in 1 contract
Sources: Agency Agreement (NI Holdings, 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 conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing TimeDate, true and correct in all material respectscorrect, and (ii) the Amalgamated condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) The Offering Registration Statement shall have been declared qualified effective by the Commission, the Conversion Application and Holding Company Application shall have been approved by the Federal Reserve, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any the knowledge of the Amalgamated Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefor initiated or, to any the knowledge of the Amalgamated Primary Parties’ knowledge, threatened by the DepartmentFederal Reserve, the Commission, Commission or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, the Agent shall have received:
(1) An opinion or opinionsThe opinion, dated as of the Closing TimeDate, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., as L.L.P. and/or local counsel acceptable to the Amalgamated PartiesAgent, in form and substance satisfactory to the Agent and counsel for the Agent, Agent to the effect that:
(i) HoldCo The Holding Company is a corporation duly incorporated organized and validly existing and a subsisting corporation under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement, and, to its knowledge, Prospectus and is duly qualified to transact business and is a subsisting corporation in 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, and the activities of the Holding Company as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(ii) The Bank is a duly organized and validly existing federally-chartered savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered 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 OCC and the FDIC; 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 good standing the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification and in which qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the MHC as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(iiiv) Prior to the Closing Time ACIC was The Mid-Tier Holding Company is a mutual insurance company, and, after the Closing Time, ACIC will be a federally-chartered stock corporation duly incorporated organized and validly subsisting District existing under the laws of Columbia stock insurance company the United States, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iiiv) The authorized capital stock activities of HoldCo consists 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 the laws of 9,000,000 shares of Common Stock, $0.01 par value per sharethe United States, and 1,000,000 shares with respect to the Holding Company, are also permitted by the laws of preferred stockthe Commonwealth of Pennsylvania and the rules, no par valueregulations and practices of the Federal Reserve. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and HoldCo 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 Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no shares proceedings for the termination or revocation of capital stock issued and outstanding. Immediately upon the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the OfferingConversion, (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 HoldCo the Holding Company to facilitate the Conversion); (b) the Offer Shares 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 and, if applicable, sold in the Public Offeringand delivered by HoldCo 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 (bd) the issuance of the shares of Common Stock of HoldCo will Shares is not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCothe Holding Company, or arising or outstanding by operation of law or, to the knowledge of such counsel, or under any contract, indenture, agreement, instrument or other documentdocument known to such counsel, except for the subscription rights under the Plan.
(ivviii) The execution and delivery of this Agreement and, if applicable, the Underwriting Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated PartiesPrimary Parties who have the corporate power and authority to enter into the Agreement and, if applicable, the Underwriting Agreement, and to perform their obligations thereunder, 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, except to the extent that such enforceability may be limited by bankruptcy, moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions, the accounts of which are insured by the FDIC, and except to the extent enforcement hereof is subject to general equity principles (either in a proceeding in equity or at law) and laws and judicial decisions regarding the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vix) The Plan has been duly adopted by the Board of Directors of ACIC 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 Official CodeConversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(vix) Upon consummation of the Offering, to the knowledge of To such counsel’s knowledge, (a) the Conversion, including the Offering and the Exchange, was made effected in all material respects in accordance with the PlanPlan and all applicable laws, including statutes, regulations, decisions and orders (bexcept 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 and Offering imposed by the Commission Federal Reserve, the Commission, the OCC, or the Department any other governmental agency, if any, were complied with by the Amalgamated Primary Parties in all material respects or appropriate waivers were obtained, obtained and (c) all notice notices and waiting periods were satisfied satisfied, waived or waived; providedreplaced.
(xi) The Conversion Application (including the Plan, howeverthe Prospectus, that the Members’ Proxy Statement, and the Stockholders’ Proxy Statement) and the Holding Company Application have been approved by the 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 to be obtained by the Primary Parties in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offeredrendered.
(viixii) The Offering Statement has become qualified under acquisition by the 1933 Act and, to such counsel’s knowledge after making inquiry Holding Company of all of the Commissionissued and outstanding capital stock of the Bank has been authorized by the Federal Reserve, and based upon representations made by staff of the Commission, no stop order suspending the qualification of the Offering Statement action has been issued, andtaken 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. Any required filing of the Final Prospectus pursuant to Rule 424(b) or threatened(c) has been made in the manner and within the time period required by Rule 424.
(viiixiv) The description material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “The Conversion and Offering - Tax Aspects.” The information in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “The Conversion and Offering - Tax Aspects” has been reviewed by such counsel and fairly describes the opinions rendered by such counsel and ParenteBeard LLC to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock of HoldCo conform to the description thereof contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport and the form of certificate to summarize certain provisions be used to evidence the shares of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereofCommon Stock complies with all statutory requirements.
(ixxvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended by post-effective amendment or as otherwise or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented) (in each case, 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 Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve in approving the Applications filed with the Federal Reserve.
(xvii) At the time that the Offering Registration Statement became qualifiedeffective and as of the Closing Date, the Offering Registration Statement, including the Offering Circular contained therein, Prospectus (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, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations.
(xxviii) To such counsel’s knowledge, there There are no legal or governmental proceedings pending or 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.
(xixix) The information in the Offering Statement Prospectus under the captions “BUSINESS — Regulation,” “The Conversion and Offering - Tax Aspects” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights,” “Restrictions on Acquisition of Malvern Bancorp-New,” “Description of our Capital Stock,” and “DESCRIPTION OF OUR CAPITAL STOCKThe Conversion and Offering,” to the extent that it such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been reviewed by such counsel and is accurate in all material respects the information required to be presented in Form 1-A.respects.
(xiixx) None of the Amalgamated Primary Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixxi) To such counsel’s knowledge, none None of the Amalgamated Primary Parties is in violation of its Organizational Documents articles of incorporation or its charter, as in effect at the Closing Time. In additioncase 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 Amalgamated Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any material violation of the provisions of the Organizational Documents certificate of incorporation or charter, as the case may be, or the bylaws of any of the Amalgamated Parties or Primary Parties, (ii) 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, the State of New York with respect to the opinion as to the enforceability of this Agreement included in paragraph (viii) and the Business Corporation Law of the Commonwealth of 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, without independent investigationto the extent such counsel deems proper, on certificates of responsible officers of the Amalgamated Primary Parties (to the extent relevant) 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. Such opinion may be limited hereunder by special counsel to the laws Primary Parties. The opinion 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 any other state.
(2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Statement and the Offering Circular, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Parties, representatives of the independent public accounting firm counsel for the Amalgamated Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties that caused them to believe that (i) the Offering Statement at the time it was ordered qualified by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Statement, the General Disclosure Package and the Offering Circular, 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 Offering Statement, Offering Circular or General Disclosure Package).
(3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Primary Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they subject
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent Agents hereunder and the occurrence of the Closing and the Conversion are subject to the conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing TimeDate, true and correct in all material respectscorrect, and (ii) the Amalgamated condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) The Offering Registration Statement shall have been declared qualified effective by the Commission, the Conversion Application and Holding Company Application shall have been approved by the Federal Reserve, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any the knowledge of the Amalgamated Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefor initiated or, to any the knowledge of the Amalgamated Primary Parties’ knowledge, threatened by the DepartmentFederal Reserve, the Commission, Commission or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, Stifel, as the Agent or Stifel as Representative shall have received:
(1) An opinion or opinionsThe opinion, dated as of the Closing TimeDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as P.C. and/or local counsel acceptable to the Amalgamated PartiesStifel, in form and substance satisfactory to Stifel and their counsel for the Agent, to the effect that:
(i) HoldCo The Holding Company is a corporation duly incorporated organized and validly subsisting existing under the laws of the Commonwealth State of PennsylvaniaMaryland, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement, and, to its knowledge, Prospectus and is duly qualified to transact business in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the Holding Company as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(ii) The Bank is a duly organized and validly existing federally-chartered savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered 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 OCC and the FDIC; 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 good standing the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification and in which qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the MHC as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(iiiv) Prior to the Closing Time ACIC was The Mid-Tier Holding is a mutual insurance company, and, after the Closing Time, ACIC will be a federally-chartered stock corporation duly incorporated organized and validly subsisting District existing under the laws of Columbia stock insurance company the United States, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iiiv) The authorized capital stock activities of HoldCo consists 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 the laws of 9,000,000 shares of Common Stock, $0.01 par value per sharethe United States, and 1,000,000 shares with respect to the Holding Company, are also permitted by the laws of preferred stockthe State of Maryland and the rules, no par valueregulations and practices of the Federal Reserve. To such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and HoldCo 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 Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no shares proceedings for the termination or revocation of capital stock issued and outstanding. Immediately upon the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the OfferingConversion, (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 HoldCo the Holding Company to facilitate the Conversion); (b) the Offer Shares 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, if applicable, sold in the Public Offering and delivered by HoldCo 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 (bd) the issuance of the shares of Common Stock of HoldCo will Shares is not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCothe Holding Company, or arising or outstanding by operation of law or, to the knowledge of such counsel, or under any contract, indenture, agreement, instrument or other documentdocument known to such counsel, except for the subscription rights under the Plan.
(ivviii) The execution and delivery of this Agreement and, if applicable, the Underwriting Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated PartiesPrimary Parties who have the corporate power and authority to enter into the Agreement and, if applicable, the Underwriting Agreement, and to perform their obligations thereunder, 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, except to the extent that such enforceability may be limited by bankruptcy, moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions, the accounts of which are insured by the FDIC, and except to the extent enforcement hereof is subject to general equity principles (either in a proceeding in equity or at law) and laws and judicial decisions regarding the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vix) The Plan has been duly adopted by the Board of Directors of ACIC 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 Official CodeConversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(vix) Upon consummation of the Offering, to the knowledge of To such counsel's knowledge, (a) the Conversion, including the Offering and the Exchange, was made effected in all material respects in accordance with the PlanPlan and all applicable laws, including statutes, regulations, decisions and orders (bexcept 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 and Offering imposed by the Commission Federal Reserve, the Commission, the OCC, or the Department any other governmental agency, if any, were complied with by the Amalgamated Primary Parties in all material respects or appropriate waivers were obtained, obtained and (c) all notice notices and waiting periods were satisfied satisfied, waived or waived; providedreplaced.
(xi) The Conversion Application (including the Plan, howeverthe Prospectus, that the Members’ Proxy Statement, and the Stockholders’ Proxy Statement) and the Holding Company Application have been approved by the Federal Reserve, and the Georgia Application has been approved by the Georgia Department of Banking and Finance, 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 to be obtained by the Primary Parties in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offeredrendered.
(viixii) The Offering Statement acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has become qualified under been authorized by the 1933 Act andFederal Reserve, and no action has been taken or is pending or, to such counsel’s knowledge after making inquiry of 's knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the Commission1933 Act, and based upon representations made by staff of the Commission, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, andissued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, no proceedings for that purpose have threatened by the Commission. Any required filing of the Final Prospectus pursuant to Rule 424(b) or (c) has been instituted or threatenedmade in the manner and within the time period required by Rule 424.
(viiixiv) The description material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary - Tax Consequences” and “The Conversion and Offering – Effects of Conversion on Depositors, Borrowers and Members and - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary - Tax Consequences” and “The Conversion and Offering – Effects of the Conversion on Depositors, Borrowers and Members” and “Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the opinion rendered by such counsel with respect to the federal income tax consequences and the Georgia, Alabama and Florida state income tax consequences are consistent with the federal income tax consequences.
(xv) The terms and provisions of the shares of Common Stock of HoldCo conform to the description thereof contained in the Offering Registration Statement and the Offering Circular, insofar as such statements purport to summarize certain provisions of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereofProspectus.
(ixxvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended by post-effective amendment or as otherwise or supplemented), the Members' Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented) (in each case, 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 Conversion Regulations (except as modified or waived by the Federal Reserve) and all applicable laws, rules and regulations and decisions and orders of the Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve in approving the Applications filed with the Federal Reserve.
(xvii) At the time that the Offering Registration Statement became qualifiedeffective and as of the Closing Date, the Offering Registration Statement, including the Offering Circular contained therein, Prospectus (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, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations.
(xxviii) To such counsel’s knowledge, there There are no legal or governmental proceedings pending or 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.
(xixix) The information in the Offering Statement Prospectus under the captions “BUSINESS — Supervision and Regulation,” “The Conversion and Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights For Existing Stockholders of Old Charter Financial,” “Restrictions on Acquisition of New Charter Financial,” “Description of Capital Stock of New Charter Financial Following the Conversion,” and “DESCRIPTION OF OUR CAPITAL STOCKThe Conversion and Offering,” to the extent that it such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been reviewed by such counsel and is accurate in all material respects the information required to be presented in Form 1-A.respects.
(xiixx) None of the Amalgamated Primary Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixxi) To such counsel’s knowledge, none None of the Amalgamated Primary Parties is in violation of its Organizational Documents articles of incorporation or its charter, as in effect at the Closing Time. In additioncase may be, or its bylaws or, to 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 Amalgamated Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any material violation of the provisions of the Organizational Documents certificate of incorporation or charter, as the case may be, or the bylaws of any of the Amalgamated Parties or Primary Parties, (ii) any material 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, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States, the State of New York with respect to the opinion as to the enforceability of this Agreement included in paragraph (viii) and the General Corporation Law of the State of Maryland and the Banking laws of the State of Georgia with respect to paragraph (xi). 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 Stifel, as long as such other opinion indicates that Stifel may rely on the opinion, and (B) as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of any other state.
(2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Statement and the Offering Circular, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Parties, representatives of the independent public accounting firm for the Amalgamated Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties that caused them to believe that (i) the Offering Statement at the time it was ordered qualified by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Statement, the General Disclosure Package and the Offering Circular, 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 Offering Statement, Offering Circular or General Disclosure Package).
(3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization, are subject to the conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing TimeDate, true and correct in all material respectscorrect, and (ii) the Amalgamated 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 Offering Registration Statement shall have been declared qualified effective by the CommissionCommission and the prospectus and proxy statement contained in the Applications and the Interagency Merger Application shall have been approved by the Department and the FDIC for mailing prior to the commencement of the Offering, the Holding Company Application shall have been approved by the FRB, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to any of the Amalgamated Parties’ knowledge, or threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefor therefore initiated or, to any of the Amalgamated Parties’ knowledge, or threatened by the Department, the FDIC, the FRB, the Commission, or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, the Agent shall have received:
(1) An opinion or opinionsThe favorable opinion, dated as of the Closing TimeDate, of ▇▇P▇▇▇▇▇ & B▇▇▇▇ LLP, P.C., as special counsel for the Primary Parties and/or local counsel acceptable to the Amalgamated Parties, Agent in form and substance satisfactory to counsel for the Agent, Agent to the effect that:
(i) HoldCo The Company is a corporation duly incorporated organized and validly subsisting existing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, operate and lease its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification.
(ii) The Bank is a duly organized and validly existing Pennsylvania chartered savings bank in mutual form and immediately following the completion of the Reorganization will be a validly existing Pennsylvania chartered savings bank in permanent capital stock form of organization, in both instances with full power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into this Agreement; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the Department, the FDIC and the FRB; the issuance and sale of the capital stock of the Bank to the Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable, and, to the best of such counsel’s knowledge will be owned of record and beneficially by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction of any kind whatsoever.
(iii) The Bank is a member of the FHLB of Pittsburgh; the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of such insurance are pending or to such counsel’s knowledge threatened.
(iv) The Foundation has been duly organized and is validly existing as a non-stock corporation in good standing under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Prospectus; the Foundation is not a bank holding company within the meaning of the BHCA as a result of the issuance of the Foundation Shares to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to established the Foundation and to contribute the Foundation Shares thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, the Conversion Application or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Date; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(v) Upon consummation of the Reorganization, and, to its knowledge, is the MHC will have been duly qualified to transact business organized 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 validly existing as a Material Adverse Effect.
(ii) Prior to the Closing Time ACIC was a Pennsylvania chartered mutual insurance holding company, and, after the Closing Time, ACIC will be a duly incorporated and validly subsisting District of Columbia stock insurance company with corporate power and authority to own, lease and operate its properties and authorized to conduct its business and own its properties as described in the Offering Statement and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse EffectProspectus.
(iiivi) The authorized Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of HoldCo consists of 9,000,000 the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock, $0.01 par value per share, and 1,000,000 shares of preferred stock, no par value, and HoldCo has no shares of capital stock Stock have been or will be issued and outstanding. Immediately upon consummation of outstanding prior to the Offering, Closing Date; (ab) the shares of Common Stock of HoldCo the Company issued to the MHC and the Foundation will have been duly and validly authorized for issuance and will be fully paid and nonassessable; and (c) the shares of Common Stock of the Company to be subscribed for or for which orders are placed sold in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo the Company pursuant to the Plan against payment of the consideration calculated as set forth in the PlanPlan and the Prospectus, will be fully paid and nonassessable; and (b) the issuance of the shares of Common Stock of HoldCo will is not be subject to preemptive rights under the articles of incorporation incorporation, or bylaws of HoldCothe Company, or arising or outstanding by operation of law or, to the knowledge of such counsel, or under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan, and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor.
(ivvii) The Primary Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan, and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vviii) The Plan has been duly adopted by the Board board of Directors trustees of ACIC the Bank and approved by the members of the Bank, in the manner required by the Official CodeConversion Regulations and the Bank’s articles of incorporation and bylaws.
(viix) Upon The Applications have been approved by the Department and the FDIC. The FDIC has also approved the Interagency Merger Application. The FRB has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank, and the Prospectus and the Proxy Statement have been authorized for use by the Department and the FDIC, and subject to the satisfaction of any conditions set forth in such approvals and clearance under applicable securities laws no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Amalgamated Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offeredReorganization.
(viix) The Offering Statement purchase by the Company of all of the issued and outstanding capital stock of the Bank has become qualified under been authorized by the 1933 Act andDepartment and no action has been taken, or, is, pending or, to such counsel’s knowledge after making inquiry of knowledge, threatened to revoke any such authorization or approval.
(xi) The Registration Statement is effective under the Commission1933 Act, and based upon representations made by staff of the Commission, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or or, to such counsel’s knowledge, threatened.
(viiixii) The description material tax consequences of the shares Reorganization are set forth in the Prospectus under the caption “The Reorganization and Stock Offering - Material Income Tax Consequences,” and the information in the Prospectus under the caption “The Reorganization and Stock Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and M▇▇▇▇▇▇ M▇▇▇▇▇ ▇▇▇▇▇ & Associates to the Primary Parties with respect to such matters.
(xiii) The terms and provisions of Common Stock of HoldCo the Shares conform to the description thereof contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport and the form of certificates used to summarize certain provisions of evidence the articles of incorporation Shares are in due and bylaws of HoldCo, provide a fair summary thereofproper form.
(ixxiv) At the time the Applications including the Prospectus contained therein was approved by the Department and the FDIC, the Applications, including the Prospectus contained therein complied as to form in all material respects with the requirements of the Conversion Regulations (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Department and the FDIC approving the Applications.
(xv) At the time that the Offering Registration Statement became qualified, effective the Offering Registration Statement, including the Offering Circular Prospectus contained therein, 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, valuation as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulationsrules and regulations promulgated thereunder.
(xxvi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting The Plan has been duly adopted by the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance required vote of the Sharestrustees or directors of the Primary Parties, as the case may be, and by the Bank’s depositors.
(xixvii) The information in the Offering Statement Prospectus under the captions “BUSINESS — RegulationRegulation and Supervision,” “Federal and State Taxation,” “Restrictions on Acquisition of North Penn Bancorp”, “Description of North Penn Bancorp Capital Stock,” “The North Penn Charitable Foundation” and “DESCRIPTION OF OUR CAPITAL STOCK,The Reorganization and Stock Offering” to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been reviewed by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xviii) To such counsel’s knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Applications, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those filed as exhibits thereto in the Applications, the Registration Statement or the Prospectus. The description of the Applications, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be presented in Form 1-A.shown.
(xiixix) The Plan complies in all material respects with all applicable state and federal law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; no order has been issued by the Department, the FDIC, the FRB or the Commission or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or to such counsel’s knowledge threatened by the Department, the FDIC, the FRB or the Commission or any state authority and, to such counsel’s knowledge no person has sought to obtain regulatory or judicial review of the final action of the Department and the FDIC approving the Plan, the Applications, or the approval by the FRB of the Holding Company Application or the FDIC of the Interagency Merger Application, or the Prospectus.
(xx) The Primary Parties have obtained all material licenses, permits and other governmental authorization currently required for the conduct of their businesses as described in the Registration Statement and the Prospectus and all such licenses, permits and other governmental authorizations are in full force and effect and to such counsel’s knowledge the Primary Parties are in all material respects complying therewith.
(xxi) None of the Amalgamated Primary Parties is in violation of its articles of incorporation and bylaws, or, to such counsel’s knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease, or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse effect on the financial condition, earnings, capital, properties or assets of the Primary Parties considered as one enterprise; to such counsel’s knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Primary Parties pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which any of the Primary Parties is a party or by which any of them may be bound, or to which any of the property or assets of any of the Primary Parties are subject; and such action will not result in any violation of the provisions of the articles of incorporation or bylaws of any of the Primary Parties, or result in any violation of any applicable federal or state law, act, regulation or order or court order, writ, injunction or decree.
(xxii) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixxiii) To such counselThe Company’s knowledge, none articles of incorporation and bylaws comply in all material respects with the laws of the Amalgamated Parties is Commonwealth of Pennsylvania. The MHC articles of incorporation and Bylaws comply in violation all material respects with the laws of its Organizational Documents as the Commonwealth of Pennsylvania. The Bank’s articles of incorporation and bylaws comply in effect at all material respects with the Closing Timelaws of the Commonwealth of Pennsylvania
(xxiv) The Bank has duly adopted Pennsylvania stock articles of incorporation and bylaws effective upon consummation of the Reorganization. In addition, to such counsel’s knowledge, the The execution and delivery of and performance under this Agreement by the Amalgamated Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents articles of incorporation, or the bylaws of any of the Amalgamated Primary Parties or any material violation of any applicable lawthe regulations of the Department, act, regulationFDIC or FRB, or to the such counsel’s knowledge, any order or court order, writ, injunction or decreedecree that specifically names any of the Primary Parties. The opinion may be limited to matters governed by the laws of the United States, and in the case of local counsel, the Commonwealth of Pennsylvania. In rendering such opinion, such counsel may rely (A) as to matters involving the application of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of any other state.
(2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Statement and the Offering Circular, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Parties, representatives of the independent public accounting firm for the Amalgamated Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties that caused them to believe that (i) the Offering Statement at the time it was ordered qualified by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Statement, the General Disclosure Package and the Offering Circular, 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 Offering Statement, Offering Circular or General Disclosure Package).
(3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 jurisdiction other than temporary trading halts (A) imposed as a result of intraday changes in the Dow ▇▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of federally-insured financial institutions or general moratorium on the withdrawal of deposits from federally-insured financial institutions declared by either federal or state authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they th
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Offering are subject to the conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing TimeDate, true and correct in all material respectscorrect, and (ii) the Amalgamated condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) The Offering Registration Statement shall have been declared qualified effective by the Commission, Commission and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to any of the Amalgamated Primary Parties’ ' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefor therefore initiated or, to any of the Amalgamated Primary Parties’ ' best knowledge, threatened by the Department, the Commission, Commission or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, the Agent shall have received:
(1) An opinion or opinionsThe favorable opinion, dated as of the Closing TimeDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as and/or local counsel acceptable to the Amalgamated Parties, Agent in form and substance satisfactory to counsel for the Agent, Agent to the effect that:
(i) HoldCo The Holding Company is a corporation duly incorporated organized and validly subsisting existing under the laws of the Commonwealth State of PennsylvaniaDelaware, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering StatementProspectus, and, to its knowledge, and is duly qualified to transact business and will be is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) Prior to the Closing Time ACIC was a mutual insurance company, and, after the Closing Time, ACIC will be The Bank is a duly incorporated organized and validly subsisting District of Columbia stock insurance company existing New Jersey chartered savings bank with corporate full power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iii) The authorized capital stock activities of HoldCo consists the Bank described in the Prospectus are permitted under New Jersey law to a New Jersey chartered savings bank. To the best of 9,000,000 shares such counsel's knowledge, each of Common Stockthe Holding Company and the Bank has obtained all licenses, $0.01 par value per sharepermits, and 1,000,000 shares other governmental authorizations that are material for the conduct of preferred stockits business, no par valueall such licenses, permits and other governmental authorization are in full force and effect, and HoldCo has the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no shares proceedings for the termination or revocation of capital stock issued such insurance are pending or threatened.
(v) The MHC is duly organized and outstanding. Immediately upon validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon the Bank's reorganization into the mutual holding company form of organization); (b) the shares of Common Stock of HoldCo the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo 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 (bd) the issuance of the shares of Common Stock of HoldCo will is not be subject to preemptive rights under the articles of incorporation charter or bylaws of HoldCoany of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan; and (e) the shares of Common Stock of the Holding Company and $500,000 in cash to be contributed to the Charitable Foundation will have been duly and validly authorized for issuance and delivery.
(ivvii) 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 Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vviii) The Plan has been duly adopted by the Board board of Directors directors of ACIC in the manner required by the Official CodeHolding Company.
(vi) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Amalgamated Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered.
(viiix) The Offering Registration Statement has become qualified effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the CommissionAct, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to such counsel’s 's knowledge, no proceedings for that purpose have been instituted or threatened.
(viiix) The description material tax consequences of the Offering are set forth in the Prospectus under the caption "Summary - Tax Consequences of the Offering." The information in the Prospectus under the caption "Summary - Tax Consequences of the Offering" has been reviewed by such counsel and fairly describes such opinion rendered by such counsel to the Primary Parties with respect to such matters.
(xi) The terms and provisions of the shares of Common Stock of HoldCo conform to the description thereof contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport and the forms of certificates proposed to summarize certain provisions be used to evidence the shares of the articles of incorporation Common Stock are in due and bylaws of HoldCo, provide a fair summary thereofproper form.
(ixxii) At the time that the Offering Registration Statement became qualified, effective the Offering Registration Statement, including the Offering Circular Prospectus contained therein, 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, valuation as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulationsrules and regulations promulgated thereunder.
(xxiii) To such counsel’s 's knowledge, there are no legal or governmental proceedings pending pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Offering or the offer, sale or issuance of the Shares.
(xixiv) The information in the Offering Statement Prospectus under the captions “BUSINESS — "Supervision and Regulation,” " "Federal and “DESCRIPTION OF OUR CAPITAL STOCKState Taxation,” " "Restrictions on the Acquisition of Magyar Bancorp, Inc. and Magyar Bank," "Description of Capital Stock of Magyar Bancorp, Inc.," and "The Reorganization and the Stock Offering," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been reviewed by such counsel and is accurate in all material respects the information required to be presented in Form 1-A.
(xii) None of the Amalgamated Parties is required to be registered except as an investment company under the Investment Company Act of 1940, as amended.
(xiii) To such counsel’s knowledge, none of the Amalgamated Parties is in violation of its Organizational Documents as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the Amalgamated Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents of any of the Amalgamated Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of any other state.
(2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Statement and the Offering Circular, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Parties, representatives of the independent public accounting firm for the Amalgamated Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties that caused them to believe that (i) the Offering Statement at the time it was ordered qualified by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Statement, the General Disclosure Package and the Offering Circular, and counsel need not express any belief with respect to the financial statements, schedules statements 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 Offering Statement, Offering Circular or General Disclosure Packageincluded therein as to which such counsel need express no opinion).
(3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent Agents hereunder and the occurrence of the Closing and the Conversion are subject to the conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing TimeDate, true and correct in all material respectscorrect, and (ii) the Amalgamated condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) The Offering Registration Statement shall have been declared qualified effective by the Commission, the Conversion Application and Holding Company Application shall have been approved by the Federal Reserve, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any the knowledge of the Amalgamated Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefor initiated or, to any the knowledge of the Amalgamated Primary Parties’ knowledge, threatened by the DepartmentFederal Reserve, the Commission, Commission or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing TimeDate, the Agent Agents shall have received:
(1) An opinion or opinionsThe opinion, dated as of the Closing TimeDate, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as P.C. and/or local counsel acceptable to the Amalgamated PartiesAgents, in form and substance satisfactory to the Agents and their respective counsel for the Agent, to the effect that:
(i) HoldCo The Holding Company is a corporation duly incorporated organized and validly subsisting existing under the laws of the Commonwealth State of PennsylvaniaMaryland, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement, and, to its knowledge, Prospectus and is duly qualified to transact business in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the Holding Company as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(ii) The Bank is a duly organized and validly existing federally-chartered savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered 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 OCC and the FDIC; 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 good standing the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification and in which qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the MHC as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(iiiv) Prior to the Closing Time ACIC was The Mid-Tier Holding is a mutual insurance company, and, after the Closing Time, ACIC will be a federally-chartered stock corporation duly incorporated organized and validly subsisting District existing under the laws of Columbia stock insurance company the United States, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iiiv) The authorized capital stock activities of HoldCo consists 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 the laws of 9,000,000 shares of Common Stock, $0.01 par value per sharethe United States, and 1,000,000 shares with respect to the Holding Company, are also permitted by the laws of preferred stockthe State of Maryland and the rules, no par valueregulations and practices of the Federal Reserve. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and HoldCo 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 with the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no shares proceedings for the termination or revocation of capital stock issued and outstanding. Immediately upon the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the OfferingConversion, (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 HoldCo the Holding Company to facilitate the Conversion); (b) the Offer Shares 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, if applicable, sold in the Public Offering and delivered by HoldCo 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 (bd) the issuance of the shares of Common Stock of HoldCo will Shares is not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCothe Holding Company, or arising or outstanding by operation of law or, to the knowledge of such counsel, or under any contract, indenture, agreement, instrument or other documentdocument known to such counsel, except for the subscription rights under the Plan.
(ivviii) The execution and delivery of this Agreement and, if applicable, the Underwriting Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated PartiesPrimary Parties who have the corporate power and authority to enter into the Agreement and, if applicable, the Underwriting Agreement, and to perform their obligations thereunder, 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, except to the extent that such enforceability may be limited by bankruptcy, moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions, the accounts of which are insured by the FDIC, and except to the extent enforcement hereof is subject to general equity principles (either in a proceeding in equity or at law) and laws and judicial decisions regarding the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vix) The Plan has been duly adopted by the Board of Directors of ACIC 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 Official CodeConversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(vix) Upon consummation of the Offering, to the knowledge of To such counsel’s knowledge, (a) the Conversion, including the Offering and the Exchange, was made effected in all material respects in accordance with the PlanPlan and all applicable laws, including statutes, regulations, decisions and orders (bexcept 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 and Offering imposed by the Commission Federal Reserve, the Commission, the OCC, or the Department any other governmental agency, if any, were complied with by the Amalgamated Primary Parties in all material respects or appropriate waivers were obtained, obtained and (c) all notice notices and waiting periods were satisfied satisfied, waived or waived; providedreplaced.
(xi) The Conversion Application (including the Plan, howeverthe Prospectus, that the Members’ Proxy Statement, and the Stockholders’ Proxy Statement) and the Holding Company Application have been approved by the Federal Reserve, and the Georgia Application has been approved by the Georgia Department of Banking and Finance, 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 to be obtained by the Primary Parties in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offeredrendered.
(viixii) The Offering Statement has become qualified under acquisition by the 1933 Act and, to such counsel’s knowledge after making inquiry Holding Company of all of the Commissionissued and outstanding capital stock of the Bank has been authorized by the Federal Reserve, and based upon representations made by staff of the Commission, no stop order suspending the qualification of the Offering Statement action has been issued, andtaken 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. Any required filing of the Final Prospectus pursuant to Rule 424(b) or threatened(c) has been made in the manner and within the time period required by Rule 424.
(viiixiv) The description material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary - Tax Consequences” and “The Conversion and Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary - Tax Consequences” and “The Conversion and Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the opinions rendered by such counsel and to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock of HoldCo conform to the description thereof contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport and the form of certificate to summarize certain provisions be used to evidence the shares of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereofCommon Stock complies with all statutory requirements.
(ixxvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended by post-effective amendment or as otherwise or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented) (in each case, 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 Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve in approving the Applications filed with the Federal Reserve.
(xvii) At the time that the Offering Registration Statement became qualifiedeffective and as of the Closing Date, the Offering Registration Statement, including the Offering Circular contained therein, Prospectus (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, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations.
(xxviii) To such counsel’s knowledge, there There are no legal or governmental proceedings pending or 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.
(xixix) The information in the Offering Statement Prospectus under the captions “BUSINESS — Regulation,” “The Conversion and Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights For Existing Stockholders of Old Charter Financial,” “Restrictions on Acquisition of New Charter Financial,” “Description of Capital Stock of New Charter Financial Following the Conversion,” and “DESCRIPTION OF OUR CAPITAL STOCKThe Conversion and Offering,” to the extent that it such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents has been reviewed by such counsel and is accurate in all material respects the information required to be presented in Form 1-A.respects.
(xiixx) None of the Amalgamated Primary Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixxi) To such counsel’s knowledge, none None of the Amalgamated Primary Parties is in violation of its Organizational Documents articles of incorporation or its charter, as in effect at the Closing Time. In additioncase 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 Amalgamated Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any material violation of the provisions of the Organizational Documents certificate of incorporation or charter, as the case may be, or the bylaws of any of the Amalgamated Parties or Primary Parties, (ii) 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, the State of New York with respect to the opinion as to the enforceability of this Agreement included in paragraph (viii) and the General Corporation Law of the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agents, as long as such other opinion indicates that the Agents may rely on the opinion, and (B) as to matters of fact, without independent investigationto the extent such counsel deems proper, on certificates of responsible officers of the Amalgamated Primary Parties (to the extent relevant) and public officials, ; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent the Agents together with the opinion to be rendered hereunder. Such opinion may be limited to 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 any other state.
(2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Offering Statement and the Offering Circular, representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC participated in conferences with certain officers of and other representatives of the Amalgamated Parties, representatives of the independent public accounting firm for the Amalgamated Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the information obtained in the course of engagement as hereunder by special counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the Amalgamated Parties that caused them to believe that (i) the Offering Statement at the time it was ordered qualified by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering Circular, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Statement, the General Disclosure Package and the Offering Circular, 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 Offering Statement, Offering Circular or General Disclosure Package).
(3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Amalgamated 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.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(e) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent to the effect that: (i) they have examined the Offering Statement and at the time the Offering Statement became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement 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 Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering Statement, the General Disclosure Package and the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated 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 Amalgamated 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 qualification of the Offering 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 Offering Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing are subject to the conditions condition that (i) all representations and warranties and other statements of the Amalgamated Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Time, true and correct in all material respects, and (ii) the Amalgamated 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 Offering Registration Statement shall have been declared qualified effective by the Commission, and no stop order or other action suspending the qualification effectiveness of the Offering Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Amalgamated Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Offering Statement Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefor initiated or, to any of the Amalgamated Primary Parties’ knowledge, threatened by the Department, the Commission, or any other governmental body. The Conversion Application shall have been approved by the Department.
(b) At the Closing Time, the Agent shall have received:
(1) An opinion or opinionsThe opinion, dated as of the Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇, P.C.▇▇▇▇ LLP, as special counsel to the Amalgamated Partiesindependent directors of PMMHC, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Offering StatementProspectus, and, to its knowledge, is and will be duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) Prior to the Closing Time ACIC was a mutual insurance company, and, after the Closing Time, ACIC will be PMMHC is a duly incorporated and validly subsisting District of Columbia stock insurance Pennsylvania mutual holding company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Statement Prospectus and to enter into this Agreement and perform its obligations hereunder, andand is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect (as defined in Section 6(m)).
(iii) PMHC is a duly incorporated and validly subsisting corporation under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its knowledgeproperties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iiiiv) PMIC is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. PMIC has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(v) American Millers is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. American Millers has the requisite corporate power and authority to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(vi) The authorized capital stock of HoldCo consists of 9,000,000 10,000,000 shares of Common Stock, $0.01 par value per share, Stock and 1,000,000 shares of preferred stock, no having such par value, if any, as the board of directors shall fix and determine; HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the issued and outstanding capital stock of HoldCo will be within the range set forth in the Prospectus under the caption “Capitalization”; (b) the shares of Common Stock of HoldCo to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (bc) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the PlanPlan and restrictions arising under the 1998 Order.
(ivvii) 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 Amalgamated Primary Parties; and this Agreement constitutes a valid valid, legal and legal binding obligation of each of the Amalgamated 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.
(vviii) The Plan has been duly adopted by the Board of Directors of ACIC PMMHC in the manner required by the Official CodePMMHC’s articles of incorporation and bylaws.
(viix) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission Commission, the Department, or the Department any other Pennsylvania governmental agency, if any, were complied with by the Amalgamated Primary Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered.
(viix) The Offering Registration Statement has become qualified effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the qualification effectiveness of the Offering Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(viiixi) The description of the shares of Common Stock of HoldCo contained in the Offering Registration Statement and the Offering CircularProspectus, insofar as such statements purport to summarize certain provisions of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof, and the forms of certificates proposed to be used to evidence the shares of Common Stock of HoldCo comply in all material respects with all applicable laws and regulations, including, without limitation, as to form.
(ixxii) At the time that the Offering Registration Statement became qualifiedeffective, the Offering Registration Statement, including the Offering Circular 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, valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations.
(xxiii) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xixiv) The information in the Offering Statement Prospectus under the captions “BUSINESS — “ Regulation,” “RESTRICTIONS ON ACQUISITION OF THE HOLDING COMPANY,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form 1-A.S-1.
(xiixv) None of the Amalgamated Primary Parties is are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiiixvi) To such counsel’s knowledge, none of the Amalgamated Primary Parties is in violation of its Organizational Documents articles of incorporation or its bylaws as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the Amalgamated Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents articles of incorporation or the bylaws (or other constituent documents) of any of the Amalgamated Primary Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Amalgamated Primary Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of any other state.
(2) A letter of ▇▇▇▇▇▇▇ & , ▇▇▇, PC ▇▇ & Bockius LLP addressed to the Agent to the effect that during the preparation of the Offering Registration Statement and the Offering CircularProspectus, representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇, PC ▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Amalgamated Primary Parties, counsel to the Agent, representatives of the independent public accounting firm for the Amalgamated Primary Parties and representatives of the Agent at which the contents of the Offering Registration Statement and the Offering Circular Prospectus and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & , ▇▇▇, PC ▇▇ & Bockius LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Registration Statement and Offering CircularProspectus, on the basis of the information obtained in the course of engagement as special counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇, PC ▇▇▇▇ LLP providing services to the Amalgamated Parties Company that caused them to believe that (i) the Offering Registration Statement at the time it was ordered qualified effective by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Offering CircularProspectus, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in 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 Offering Registration Statement, the General Disclosure Package and the Offering CircularProspectus, 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 Offering Registration Statement, Offering Circular Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Time, of counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of counsel to the Primary Parties or other counsel acceptable to the Agent.
(4) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇, PC ▇ addressed to the Amalgamated Primary 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 Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ KPMG LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A C hereto.
(d) At the Closing Time, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ KPMG 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 three business days prior to the Closing Time.
(e) At the Closing Time, the Shares shall have been approved for listing on the NASDAQ Global Market.
(f) At the Closing Time, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Amalgamated Primary Parties, dated as of the Closing Time, in form and substance satisfactory to the Agent without personal liability to the effect that: (i) they have examined the Offering Statement Prospectus and at the time the Offering Statement Prospectus became authorized for final use, the Offering Statement 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 Offering Statement became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Offering Statement that there has not been so set forthbeen, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties; (iii) since the respective dates as of which information is given in the Offering StatementProspectus, the General Disclosure Package and the Offering Circular, there has been no material adverse change any Material Adverse Effect (as defined in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Amalgamated Parties independently, or of the Amalgamated Parties considered as one enterpriseSection 6(m)), whether or not arising in the ordinary course of businessbusiness other than as disclosed in the Prospectus; (iviii) 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; (viv) each of the Amalgamated Primary Parties has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time including the conditions contained in this Section 10; (viv) no stop order suspending the qualification of the Offering Statement has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body; and (viivi) no order suspending the Offering, the Conversion or the use effectiveness of the Offering Registration Statement 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 Commissioner with respect to the Conversion Application.
(f) Prior to and at the Closing Time, none of the Amalgamated Parties shall have sustained, since the date of the latest audited financial statements included in the Offering Statement and Offering Circular, 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 Offering Statement and the Offering Circular, and since the respective dates as of which information is given in the Offering Statement and the Offering Circular, 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 Offering Statement and the Offering Circular, 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 Offering Statement.
(g) At or prior to the Closing Time, the Department shall have issued a letter or order to ACIC, which shall have the force of approving the Conversion and Offering.
(h) 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 ▇▇▇▇▇ 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 authorities; or (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they
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