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

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing New York-chartered stock savings bank duly organized and validly existing under the laws of the State of New York, and upon consummation of the Conversion, the Bank will continue to be a validly existing New York state-chartered stock savings association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank and each Bank Subsidiary as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New York Department of Banking; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, the Bank and each Bank Subsidiary has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary are complying therewith in all material respects. (vii) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (viii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ix) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (x) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the members of the MHC in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xi) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xii) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xiii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (xiv) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission. (xv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to the Primary Parties with respect to such matters. (xvi) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvii) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xviii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (xix) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xx) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation,” “Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.” “Restrictions on Acquisition of Oneida Financial Corp.,” “Description of Capital Stock of Oneida Financial Corp. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxi) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties or any Bank Subsidiary, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Oneida Financial Corp.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application, Merger Application and ~~the~~ Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing ~~New York~~federally-chartered stock savings ~~bank duly organized and validly existing under the laws of the State of New York~~bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state~~federally-chartered stock savings ~~association~~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 ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the ~~rules,~~ rules and regulations ~~and practices~~ of the ~~FDIC and the New York Department of Banking~~OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the ~~Bank and each Bank Subsidiary~~Bank, as described in the ~~Prospectus~~Prospectus and the General Disclosure Package, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank ~~and each Bank Subsidiary~~ has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding ~~Company, the MHC, the Holding Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~vi) The Bank is a member of the FHLB of ~~New York~~Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (~~viii~~vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the ~~articles of incorporation~~ charter or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ixviii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (xix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the ~~members of the MHC~~ Voting Members in the manner required by the Conversion Regulations and the ~~articles of incorporation,~~ charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xix) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (~~xii~~xi) The Conversion Application and the Holding Company Application have been approved by the ~~OTS~~ OTS, and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (~~xiii~~xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or or, to such counsel’s knowledge, threatened to revoke any such authorization or approval. (~~xiv~~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. (xvxiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~LLP~~ PLLC to the Primary Parties with respect to such matters. (~~xvi~~xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (~~xvii~~xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ~~Applications~~Applications filed. (~~xviii~~xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~xix~~xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xxxix) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation,” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of ~~Oneida~~ Charter Financial ~~Corp.~~Corporation” “Restrictions on Acquisition of ~~Oneida~~ Charter Financial ~~Corp.~~Corporation,” “Description of Capital Stock of ~~Oneida~~ Charter Financial ~~Corp.~~ Corporation Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (~~xxi~~xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxii~~xxi) None of the Primary Parties ~~nor any Bank Subsidiary~~ is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary ~~Parties or any Bank Subsidiary~~Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of ~~New York~~ Georgia and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and ~~related~~related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the ~~Conversion~~ Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission~~Commission and the MHC Notice and Application approved by the OTS prior to the commencement of the Offering, ~~the Conversion Application and~~ the Holding Company Application shall have been ~~approved by the OTS~~approved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to ~~the knowledge~~ any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the ~~Conversion~~ Reorganization shall have been ~~issued,~~ issued or proceedings therefor initiated or, to ~~the knowledge~~ any of the Primary Parties' best knowledge, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing Date, of ~~▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &~~ Luse ▇▇▇▇▇▇, ~~P.C. and/or local counsel acceptable to the Agent, in~~ ▇▇ form and substance satisfactory to ~~the Agent and~~ counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the ~~State~~ United States of ~~Maryland~~America, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Maryland and in~~ each ~~other~~ jurisdiction in which the conduct of its business requires such ~~qualification, except where~~ qualification and in which the failure to qualify would ~~not~~ have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing New York-chartered stock savings bank duly organized and validly existing under the laws of the State of New York, and upon consummation of the Conversion, the Bank will continue to be a validly existing New York state-chartered stock savings association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank and each Bank Subsidiary as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New York Department of Banking; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action material adverse effect on the ~~part of the Holding Company and the Bank and~~financial condition, ~~upon payment therefor in accordance with the terms of the Plan~~earnings, ~~will be validly issued~~capital, ~~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~~ properties or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, the Bank and each Bank Subsidiary has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary are complying therewith in all material respects. (vii) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (viii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ix) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part affairs of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (x) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the members of the MHC in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xi) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xii) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xiii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (xiv) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission. (xv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to the Primary Parties with respect to such matters. (xvi) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvii) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xviii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (xix) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xx) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation,” “Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.” “Restrictions on Acquisition of Oneida Financial Corp.,” “Description of Capital Stock of Oneida Financial Corp. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxi) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties or any Bank Subsidiary, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Brooklyn Heights Bancorp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~OTS~~Federal Reserve, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Federal Reserve, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ~~▇▇▇▇ ▇▇▇▇▇▇ ▇~~Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~P.C.~~ L.L.P. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the ~~State~~ Commonwealth of ~~Maryland~~Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in ~~Maryland~~ Pennsylvania and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing ~~New York~~federally-chartered ~~stock~~ savings ~~bank duly organized and validly existing under the laws of the State of New York~~bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state~~federally-chartered ~~stock~~ savings ~~association~~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 ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OCC, the FDIC and the ~~New York Department of Banking~~Federal Reserve; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each ~~other~~ jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each ~~other~~ jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the ~~Bank and each Bank Subsidiary~~Bank, as described in the ~~Prospectus~~Prospectus and the General Disclosure Package, are permitted by federal law, with respect to the Holding Company by the laws of the Commonwealth of Pennsylvania, and with respect to the Bank by the laws of the United States. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank ~~and each Bank Subsidiary~~ 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, the MHC, the Holding Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~vi) The Bank is a member of good standing the FHLB of ~~New York~~Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (~~viii~~vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ixviii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, ~~and~~ except to the extent that such enforceability may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (xix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the ~~members of the MHC~~ Voting Members in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xix) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the ~~OTS~~Federal Reserve, the Commission, the OCC, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (~~xii~~xi) The Conversion Application ~~and~~ (including the ~~Holding Company Application have been approved by the OTS and~~ Plan, the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy ~~Statement~~ Statement) and the Holding Company Application have been ~~authorized for use~~ approved by the ~~OTS~~Federal Reserve, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (~~xiii~~xii) The ~~purchase~~ acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve, and no action has been taken or is pending or or, to such counsel’s knowledge, threatened to revoke any such authorization or approval. (~~xiv~~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. (xvxiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — – Federal and State Income Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Tax Aspects.” The information in the Prospectus under the captions “Summary — – Federal and State Income Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Tax Aspects” has been reviewed by such counsel and fairly describes ~~such opinion~~ the opinions rendered by such counsel and ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ ParenteBeard LLC to the Primary Parties with respect to such matters. (~~xvi~~xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock ~~is in due and proper form~~complies with all statutory requirements. (~~xvii~~xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion)Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ Federal Reserve in approving the ~~Applications~~Applications filed with the Federal Reserve. (~~xviii~~xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~xix~~xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xxxix) The information in the Prospectus under the captions “~~Supervision and~~ Regulation,” “~~Federal~~ The Conversion and ~~State Taxation,~~Offering - Tax Aspects” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of ~~Oneida Financial Corp.~~Malvern Bancorp-Federal,” [to be added] “Restrictions on Acquisition of ~~Oneida Financial Corp.~~Malvern Bancorp-New,” “Description of our Capital ~~Stock of Oneida Financial Corp. Following the Conversion~~Stock,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (~~xxi~~xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended. (~~xxii~~xxi) None of the Primary Parties ~~nor any Bank Subsidiary~~ is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the ~~articles~~ certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary ~~Parties or any Bank Subsidiary~~Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United ~~States and~~ States, the ~~States~~ State of New York and ~~Maryland~~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, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to the Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties shall also ~~shall~~ state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ~~▇▇▇▇ ▇▇▇▇▇▇ ▇~~Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~P.C.~~ L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ~~Luse~~Elias, ~~Gorman~~Matz, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~P.C.~~ L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and ~~related~~related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. has not independently verified the accuracy, completeness or f

Appears in 1 contract

Sources: Agency Agreement (Malvern Bancorp, Inc.)

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 condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~OTS~~Federal Reserve, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Federal Reserve, the Commission or any other governmental body. (b) At the Closing Date, the ~~Agent~~ Agents shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the ~~Agent~~Agents, in form and substance satisfactory to the ~~Agent~~ Agents and their respective counsel ~~for the Agent~~ to the effect that: (i) The Holding Company is a corporation duly organized and validly existing ~~and in good standing~~ under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business ~~and is in good standing~~ in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, 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 ~~New York~~federally-chartered ~~stock~~ savings ~~bank duly organized and validly existing under the laws of the State of New York~~bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state~~federally-chartered ~~stock~~ savings ~~association~~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 ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the ~~FDIC~~ OCC and the ~~New York Department of Banking~~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 the Prospectus and is duly qualified to transact business in each ~~other~~ jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, 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. (iv) The Mid-Tier Holding ~~Company~~ is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each ~~other~~ jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding ~~Company,~~ Company and the ~~Bank and each Bank Subsidiary~~Bank, as described in the ~~Prospectus~~Prospectus and the General Disclosure Package, are permitted by ~~federal law~~the laws of the United States, and with respect to the Holding Company, are also permitted by the laws of the State of Maryland and the rules, regulations and practices of the Federal Reserve. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank ~~and each Bank Subsidiary~~ has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and 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, the MHC, the Holding Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~vi) The Bank is a member of good standing with the FHLB of ~~New York~~Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (~~viii~~vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and, if applicable, sold in the Public Offering and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ixviii) 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 Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary ~~Parties~~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, ~~and~~ except to the extent that such enforceability may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (xix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the ~~members of the MHC~~ Voting Members in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xix) ~~The~~ To such counsel’s knowledge, the Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the ~~OTS~~Federal Reserve, the Commission, the OCC, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (~~xii~~xi) The Conversion Application ~~and~~ (including the ~~Holding Company Application have been approved by the OTS and~~ Plan, the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy ~~Statement~~ Statement) and the Holding Company Application have been ~~authorized for use~~ approved by the ~~OTS~~Federal Reserve, and 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 rendered. (~~xiii~~xii) The ~~purchase~~ acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve, and no action has been taken or is pending or or, to such counsel’s knowledge, threatened to revoke any such authorization or approval. (~~xiv~~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 (c) has been made in the manner and within the time period required by Rule 424. (xvxiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — - Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary — - Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes ~~such opinion~~ the opinions rendered by such counsel and ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ to the Primary Parties with respect to such matters. (~~xvi~~xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock ~~is in due and proper form~~complies with all statutory requirements. (~~xvii~~xvi) 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 OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion)Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ Federal Reserve in approving the ~~Applications~~Applications filed with the Federal Reserve. (~~xviii~~xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~xix~~xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xxxix) The information in the Prospectus under the captions “~~Supervision and~~ Regulation,” “~~Federal~~ The Conversion and ~~State Taxation,~~Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights ~~for~~ For Existing Stockholders of ~~Oneida Financial Corp.~~Old Charter Financial,” “Restrictions on Acquisition of ~~Oneida Financial Corp.~~New Charter Financial,” “Description of Capital Stock of ~~Oneida~~ New Charter Financial ~~Corp.~~ Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (~~xxi~~xx) None of the Primary Parties ~~are~~ is required to be registered as an investment company under the Investment Company Act of 1940, as amended. (~~xxii~~xxi) None of the Primary Parties ~~nor any Bank Subsidiary~~ is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the ~~articles~~ certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary ~~Parties or any Bank Subsidiary~~Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United ~~States and~~ States, the ~~States~~ 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 ~~Agent~~Agents, as long as such other opinion indicates that the ~~Agent~~ Agents may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to ~~Agent~~ the Agents together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the ~~Conversion~~ Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS,~~ Commission and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings ~~therefor~~ therefore initiated or, to ~~the knowledge~~ any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the ~~Conversion~~ Offering shall have been ~~issued,~~ issued or proceedings ~~therefor~~ therefore initiated or, to ~~the knowledge~~ any of the Primary Parties' best knowledge, threatened by ~~the OTS,~~ the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ~~P.C.~~ P.C., and/or local counsel acceptable to the ~~Agent,~~ Agent in form and substance satisfactory to ~~the Agent and~~ counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing ~~and in good standing~~ under the laws of the State of ~~Maryland~~Delaware, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Maryland and in~~ each ~~other~~ jurisdiction in which the conduct of its business requires such ~~qualification, except where~~ qualification and in which the failure to qualify would ~~not~~ have a ~~Material Adverse Effect~~material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. (ii) The Bank is a duly organized and validly existing New ~~York-~~Jersey chartered ~~stock~~ savings bank duly organized and validly existing under the laws of the State of New York, and upon consummation of the Conversion, the Bank will continue to be a validly existing New York state-chartered stock savings association, with full power and authority to own its properties and to conduct its business as described in the ~~Prospectus; the~~ Prospectus and to enter into this Agreement and perform its obligations hereunder. (iii) The activities of the Bank ~~and each Bank Subsidiary as~~ described in the Prospectus are permitted ~~by federal~~ under New Jersey law ~~and~~ to a New Jersey chartered savings bank. To the ~~rules~~best of such counsel's knowledge, regulations and practices of the FDIC and the New York Department of Banking; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part each of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, the Bank and each Bank Subsidiary has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, ~~and~~ all such licenses, permits and other governmental ~~authorizations~~ authorization are in full force and effect, and ~~to such counsel’s knowledge the Mid-Tier Holding Company, the MHC,~~ the Holding ~~Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~iv) The Bank is a member of the FHLB of New ~~York. The~~ York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of ~~the federal deposit~~ such insurance ~~of the Bank~~ are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~viii~~v) The MHC is duly organized and validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus. (vi) Upon consummation of the ~~Conversion~~Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon ~~incorporation~~ the Bank's reorganization into the mutual holding company form of ~~the Holding Company to facilitate the Conversion~~organization); (b) the ~~Offer Shares~~ shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the ~~Shares~~ shares of Common Stock is not subject to preemptive rights under the ~~articles of incorporation~~ charter or bylaws of any of the ~~Holding Company~~Primary Parties, or arising or outstanding by operation of law or or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other ~~document known to such counsel~~document, except for the subscription rights under the Plan; 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. (ixvii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 ~~and 12~~ hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws ~~and judicial decisions~~ relating to the rights of the contracting parties to equitable remedies). (xviii) The Plan has been duly adopted by the ~~Board~~ board of ~~Directors~~ directors of the ~~MHC, the Mid-Tier~~ Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the members of the MHC in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xi) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xii) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xiii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (xivix) 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~~ issued, and, to such counsel's knowledge, no proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge, threatened by the Commission~~or threatened. (xvx) The material tax consequences of the ~~Conversion~~ Offering are set forth in the Prospectus under the ~~captions “~~caption "Summary — - Tax ~~Consequences” and “Federal and State Taxation~~Consequences of the Offering.” " The information in the Prospectus under the ~~captions “~~caption "Summary — - Tax ~~Consequences” and “Federal and State Taxation”~~ Consequences of the Offering" has been reviewed by such counsel and fairly describes such opinion rendered by such counsel ~~and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ to the Primary Parties with respect to such matters. (~~xvi~~xi) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (xvii) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xviiixii) At the time that the Registration Statement became effective ~~and as of the Closing Date,~~ the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation ~~and the business plan~~ as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xix~~xiii) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the ~~Conversion~~ Offering or the offer, sale or issuance of the Shares. (xxxiv) The information in the Prospectus under the captions “"Supervision and Regulation,~~” “~~" "Federal and State Taxation,~~” “Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.” “~~" "Restrictions on the Acquisition of ~~Oneida Financial Corp.~~Magyar Bancorp, Inc. and Magyar Bank,~~” “~~" "Description of Capital Stock of ~~Oneida Financial Corp. Following~~ Magyar Bancorp, Inc.," and "The Reorganization and the ~~Conversion,” and “The Conversion and~~ Stock Offering,” " to the extent that ~~such information~~ it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material ~~respects.~~ respects (~~xxi) None of~~ except as to the ~~Primary Parties are required~~ financial statements and other financial data included therein as to be registered as an investment company under the Investment Company Act of 1940. (xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties or any Bank Subsidiary, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel ~~may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such~~ need express no opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance). (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Magyar Bancorp, Inc.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the ~~Primary~~ Monadnock Parties herein contained are, at and as of the commencement of the ~~Offering~~ Offerings and at and as of the Closing Date, true and correct, the condition that the ~~Primary~~ Monadnock Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the best knowledge of the ~~Primary~~ Monadnock Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the best knowledge of the ~~Primary~~ Monadnock Parties, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇S▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing ~~New York~~federally-chartered stock savings ~~bank duly organized and validly existing under the laws of the State of New York~~bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state~~federally-chartered stock savings ~~association~~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 ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the ~~New York Department of Banking~~OTS; ~~and at the Closing Date,~~ the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, the Bank and each Bank Subsidiary has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary are complying therewith in all material respects. (vii) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (viii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ix) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (x) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the members of the MHC in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xi) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xii) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xiii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (xiv) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission. (xv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to the Primary Parties with respect to such matters. (xvi) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvii) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xviii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (xix) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xx) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation,” “Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.” “Restrictions on Acquisition of Oneida Financial Corp.,” “Description of Capital Stock of Oneida Financial Corp. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xxi) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties or any Bank Subsidiary, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Monadnock Community Bancorp Inc)

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 condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~OTS~~Federal Reserve, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Federal Reserve, the Commission or any other governmental body. (b) At the Closing Date, Stifel, as the Agent or Stifel as Representative shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to ~~the Agent~~Stifel, in form and substance satisfactory to ~~the Agent~~ Stifel and their counsel ~~for the Agent~~ to the effect that: (i) The Holding Company is a corporation duly organized and validly existing ~~and in good standing~~ under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business ~~and is in good standing~~ in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, 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 ~~New York~~federally-chartered ~~stock~~ savings ~~bank duly organized and validly existing under the laws of the State of New York~~bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state~~federally-chartered ~~stock~~ savings ~~association~~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 ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the ~~FDIC~~ OCC and the ~~New York Department of Banking~~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 the Prospectus and is duly qualified to transact business in each ~~other~~ jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, 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. (iv) The Mid-Tier Holding ~~Company~~ is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each ~~other~~ jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding ~~Company,~~ Company and the ~~Bank and each Bank Subsidiary~~Bank, as described in the ~~Prospectus~~Prospectus and the General Disclosure Package, are permitted by ~~federal law~~the laws of the United States, and with respect to the Holding Company, are also permitted by the laws of the State of Maryland and the rules, regulations and practices of the Federal Reserve. To such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank ~~and each Bank Subsidiary~~ has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and 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, the MHC, the Holding Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~vi) The Bank is a member of the FHLB of ~~New York~~Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (~~viii~~vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and, if applicable, sold in the Public Offering and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ixviii) 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 Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary ~~Parties~~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, ~~and~~ except to the extent that such enforceability may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings ~~institutions~~ institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, and except to the extent enforcement hereof is subject to general equity principles (~~including~~ either in a proceeding in equity or at law) and laws and judicial decisions ~~relating to~~ regarding the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (xix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the ~~members of the MHC~~ Voting Members in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (xix) ~~The~~ To such counsel's knowledge, the Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the ~~OTS~~Federal Reserve, the Commission, the OCC, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (~~xii~~xi) The Conversion Application ~~and~~ (including the ~~Holding Company Application have been approved by the OTS and~~ Plan, the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy ~~Statement~~ Statement) and the Holding Company Application have been ~~authorized for use~~ approved by the ~~OTS~~Federal Reserve, and 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 rendered. (~~xiii~~xii) The ~~purchase~~ acquisition by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Federal Reserve, and no action has been taken or is pending or or, to such counsel's knowledge, threatened to revoke any such authorization or approval. (~~xiv~~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 (c) has been made in the manner and within the time period required by Rule 424. (xvxiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — - Tax Consequences” and “~~Federal~~ The Conversion and ~~State Taxation~~Offering – 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 “~~Federal~~ The Conversion and ~~State Taxation~~Offering – Effects of the Conversion on Depositors, Borrowers and Members” and “Material Income Tax Consequences” has been reviewed by such counsel and fairly describes ~~such~~ the opinion rendered by such counsel ~~and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to the Primary Parties~~ with respect to ~~such matters~~the federal income tax consequences and the Georgia, Alabama and Florida state income tax consequences are consistent with the federal income tax consequences. (~~xvi~~xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus~~, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form~~. (~~xvii~~xvi) 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 OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion)Federal Reserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ Federal Reserve in approving the ~~Applications~~Applications filed with the Federal Reserve. (~~xviii~~xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~xix~~xviii) There are no legal or governmental proceedings pending, or, to such counsel’s 's knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xxxix) The information in the Prospectus under the captions “Supervision and Regulation,” “~~Federal~~ The Conversion and ~~State Taxation,~~Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights ~~for~~ For Existing Stockholders of ~~Oneida Financial Corp.~~Old Charter Financial,” “Restrictions on Acquisition of ~~Oneida Financial Corp.~~New Charter Financial,” “Description of Capital Stock of ~~Oneida~~ New Charter Financial ~~Corp.~~ Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (~~xxi~~xx) None of the Primary Parties ~~are~~ is required to be registered as an investment company under the Investment Company Act of 1940, as amended. (~~xxii~~xxi) None of the Primary Parties ~~nor any Bank Subsidiary~~ is in violation of its articles of incorporation or its charter, as the case 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 Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the ~~articles~~ certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary ~~Parties or any Bank Subsidiary~~Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel's knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United ~~States and~~ States, the ~~States~~ State of New York with respect to the opinion as to the enforceability of this Agreement included in paragraph (viii) and ~~Maryland~~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 ~~the Agent~~Stifel, as long as such other opinion indicates that ~~the Agent~~ Stifel may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Charter Financial Corp)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the ~~Conversion Application and the~~ Holding Company Application shall have been approved by the ~~OTS~~Department, the Bank Holding Company Application shall have been approved by the FRB, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the ~~OTS~~Department, the FRB, the FDIC, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ~~P.C. and/or local counsel acceptable to the Agent~~P.C., in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing ~~New York-~~Pennsylvania chartered stock savings bank duly organized and validly existing under the laws of the ~~State~~ Commonwealth of ~~New York~~Pennsylvania, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state-~~Pennsylvania chartered stock savings ~~association~~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 ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the Pennsylvania Code and the rules, regulations and practices of the FDIC and the ~~New York Department~~ Department; upon consummation of ~~Banking~~the Conversion, the authorized capital stock of the Bank will consist of ___shares of common stock, par value [$0.01] per share and ___shares of serial preferred stock, par value [$0.01] per share; 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~~Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The ~~Mid~~Charitable Foundation has been duly incorporated and is validly existing as a non-~~Tier Holding Company is a federally-chartered~~ stock corporation ~~duly organized and validly existing~~ in good standing under the laws of the ~~United States~~State of Delaware, with corporate power and authority to ~~own~~ own, lease and operate its properties and to conduct its business as described in the Prospectus and ~~is duly qualified~~ no approvals are required to ~~transact business~~ establish the Charitable Foundation and to contribute the Foundation Shares thereto as described in ~~each other jurisdiction in which~~ the ~~conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect~~Prospectus. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of ~~the Mid-Tier Holding Company,~~ the MHC, the Holding Company, and the ~~Bank and each Bank Subsidiary~~Bank, as described in the Prospectus, are permitted by Pennsylvania and federal law. To such counsel’s knowledge, each of the MHC, the ~~Mid-Tier~~ Holding Company, ~~the Holding Company,~~ and the Bank ~~and each Bank Subsidiary~~ has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the ~~Mid-Tier Holding Company, the MHC, the Holding Company,~~ MHC and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~vi) The Bank is a member of the FHLB of ~~New York~~Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (~~viii~~vii) The authorized capital stock of the Holding Company consists of 40,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share. Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing ~~Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion)~~Date; (b) the ~~Offer~~ Subscription Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the ~~Exchange~~ Foundation Shares to be issued in to the ~~Exchange~~ Foundation will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Conversion Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (ixviii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (xix) The Plan ~~has~~ and the establishment and funding of the Foundation have been duly adopted by the Board of Directors of the MHC, the ~~Mid-Tier Holding Company, the~~ Holding Company and the Bank and approved by ~~the stockholders of the Mid-Tier Holding Company and the~~ members of the MHC in the manner required by ~~the Conversion Regulations~~ all applicable laws and regulations and the articles of ~~incorporation, charters~~ incorporation and bylaws of each of the MHC~~, the Mid-Tier Holding Company~~, the Holding Company and the Bank. (xix) The Conversion, including the Offering and the ~~Exchange~~establishment and funding of the Foundation, ~~was~~ were effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the ~~Conversion~~ Conversion, including the Offering and the establishment and funding of the Foundation, imposed by the ~~OTS~~FRB, the FDIC, the Department, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (~~xii~~xi) The ~~Conversion Application~~ Holding Company Application, and the Bank Holding Company Application have been approved by the ~~OTS~~ Department and the ~~Prospectus~~FRB, ~~the Members’ Proxy Statement~~respectively, and the ~~Stockholders’ Proxy Statement have~~ Prospectus has been authorized for use by each of the ~~OTS~~Department and the FRB, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Subscription Shares, the establishment of the Foundation and issuance of the Foundation Shares and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (~~xiii~~xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the ~~OTS~~Department and the FRB, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (~~xiv~~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. (xvxiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — – Tax Consequences” and “Taxation – Federal Taxation and – State Taxation.” The information in the Prospectus under the captions “Summary — – Tax Consequences” and “Taxation – Federal Taxation and – State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ~~▇▇▇▇▇~~ S.R. ▇▇▇▇▇▇~~▇ LLP~~ ▇▇▇, ▇.▇. to the Primary Parties with respect to such matters. (~~xvi~~xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (~~xvii~~xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented~~), the Members’ Proxy Statement (as amended or supplemented~~) and the ~~Stockholders~~Members’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of ~~the Conversion Regulations and~~ all applicable laws, rules and regulations and decisions and orders of the ~~OTS~~FRB, the FDIC and the Department, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the ~~OTS~~ FRB, the FDIC and the Department, in approving the Applications. (~~xviii~~xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~xix~~xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Subscription Shares or the issuance of the Foundation Shares. (xxxix) The information in the Prospectus under the captions “Supervision and Regulation,” “~~Federal and State Taxation~~Standard Charitable Foundation,” “~~Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.~~Taxation,” “Restrictions on Acquisition of ~~Oneida~~ Standard Financial Corp.,” “Description of Capital ~~Stock of Oneida Financial Corp. Following the Conversion,~~Stock” and “The ~~Conversion and Offering~~Conversion,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (~~xxi~~xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (~~xxii~~xxi) None of the Primary Parties ~~nor any Bank Subsidiary~~ or the Foundation is in violation of its ~~articles~~ certificate of incorporation or ~~its charter~~articles of incorporation, as ~~the case may be~~applicable, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the ~~articles~~ certificate of incorporation or ~~charter~~articles of incorporation, as ~~the case may be~~applicable, or the bylaws of any of the Primary Parties or ~~any Bank Subsidiary~~the Foundation, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the ~~States~~ Commonwealth of ~~New York~~ Pennsylvania and State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ~~Luse, Gorman,~~ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and ~~related~~related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accur

Appears in 1 contract

Sources: Agency Agreement (Standard Financial Corp.)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have ~~performed~~ performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and ~~the~~ Holding Company Application shall have been approved by the ~~OTS,~~ OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings therefor initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been ~~issued~~issued to any of the Primary Parties' best knowledge, or proceedings therefor initiated ~~or, to the knowledge of the Primary Parties,~~ or threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ~~P.C.~~ and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of ~~Maryland~~Delaware, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Maryland~~ Delaware and in each other jurisdiction in which the conduct of its business requires such ~~qualification,~~ qualification and except where the failure to qualify would ~~not~~ have a Material Adverse Effect. (ii) ~~The~~ On the date hereof, the Bank is a ~~duly organized and~~ validly existing ~~New York~~federally-chartered stock savings ~~bank duly organized and validly existing under the laws of the State of New York~~bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing ~~New York state~~federally-chartered stock savings ~~association~~bank, with full power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank ~~and each Bank Subsidiary~~ as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the ~~New York Department of Banking~~OTS; ~~and at the Closing Date,~~ the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the ~~MHC,~~ MHC and the ~~Holding Company, the Bank and each Bank Subsidiary~~Bank, as described in the Prospectus, are permitted by for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding ~~Company, the Holding Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental ~~authorizations~~ authorization are in full force and effect, and to the best of such counsel’s 's knowledge the Mid-Tier Holding ~~Company, the MHC, the Holding Company,~~ Company and the Bank ~~and each Bank Subsidiary~~ are complying therewith in all material respects. (~~vii~~iv) ~~The Bank is a member of the FHLB of New York.~~ The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~viii~~v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the ~~Offer Shares~~ shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other ~~document known to such counsel~~document, except for the subscription rights under the Plan. (ixvi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the ~~extent~~ qualification that ~~the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability~~ (i) enforcement thereof may be limited by ~~bankruptcy laws~~bankruptcy, ~~insolvency laws~~insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the ~~enforcement~~ enforceability of creditors’ ' rights generally, or the rights of creditors of savings ~~institutions~~ banks or other financial institutions, the accounts of which are insured by the ~~FDIC~~ FDIC, or the reorganization of financial institutions and (~~including~~ ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions ~~relating to~~ upon the ~~rights~~ availability of ~~the contracting parties to~~ injunctive relief and enforceability of equitable remedies), including the remedies of specific performance and self-help. (xvii) The Plan has been duly adopted by the Board of Directors of the ~~MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the members of the~~ MHC in the manner required by the Conversion Regulations and the ~~articles of incorporation, charters~~ MHC's charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (xi) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xiiviii) The Conversion Application and the Holding Company Application have been approved ~~by the OTS and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use~~ by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the ~~Shares,~~ Shares and the consummation of the Conversion, except as may be required under the ~~state~~ securities or “"blue sky” " laws of various jurisdictions as to which no opinion need be rendered. (xiii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (xivix) The Registration Statement has become effective under the 1933 ~~Act~~Act and to such counsel's knowledge, ~~and~~ no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, or proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge,~~ or threatened by the Commission. (xv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to the Primary Parties with respect to such matters. (xvix) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the ~~form~~ forms of ~~certificate~~ certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvii~~xi) At the time the ~~Applications were approved and as of the Closing Date~~Conversion Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement~~ Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (~~xviii~~xii) At the time that the Registration Statement became effective ~~and as of the Closing Date,~~ the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xix~~xiii) ~~There~~ To such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xxxiv) The information in the Prospectus under the captions ~~“Supervision and~~ "Regulation,~~” “Federal and State~~ " "Taxation,~~” “Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.” “~~" "Restrictions on the Acquisition of ~~Oneida Financial Corp.~~Fidelity Bankshares, Inc.,~~” “~~" "Description of Capital Stock of ~~Oneida Financial Corp. Following the Conversion~~Fidelity Bankshares, Inc.,” " and “"The Conversion and the Offering,” " to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material ~~respects.~~ respects (xxi) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties or any Bank Subsidiary, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the ~~United States~~financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the ~~extent such counsel deems proper~~ appraisal valuation 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)~~ business plan as to ~~matters of fact, to the extent such~~ which counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has need express no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such relianceopinion). (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Fidelity Bankshares Inc)

Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the ~~Conversion~~ Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the ~~Commission~~Commission and the MHC Notice and Application approved by the OTS prior to the commencement of the Offering, ~~the Conversion Application and~~ the Holding Company Application shall have been ~~approved by the OTS~~approved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to ~~the knowledge~~ any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the ~~Conversion~~ Reorganization shall have been ~~issued,~~ issued or proceedings therefor initiated or, to ~~the knowledge~~ any of the Primary Parties' best knowledge, threatened by the OTS, the ~~Commission~~ Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent~~, in form and substance satisfactory to ~~the Agent and~~ counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the ~~State~~ United States of ~~Maryland~~America, with corporate power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~ Prospectus, and is duly qualified to transact business and is in good standing in ~~Maryland and in~~ each ~~other~~ jurisdiction in which the conduct of its business requires such ~~qualification, except where~~ qualification and in which the failure to qualify would ~~not~~ have a ~~Material Adverse Effect~~material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. (ii) The ~~Bank~~ Association is a duly organized and validly existing ~~New York-~~federally chartered ~~stock~~ mutual savings bank duly organized and validly existing under the laws of the State of New York, and upon consummation of the Conversion, the Bank will continue to be a validly existing New York state-chartered stock savings association, association with full power and authority to own its properties and to conduct its business as described in the ~~Prospectus~~Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the ~~Bank and each Bank Subsidiary~~ Association as described in the Prospectus are permitted by ~~federal law and~~ the rules, regulations and practices of the ~~FDIC and the New York Department of Banking~~OTS; ~~and at the Closing Date,~~ the issuance and sale of the capital stock of the ~~Bank~~ Association to the Holding Company in the ~~Conversion~~ Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the ~~Bank~~ Association and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and ~~nonassessable~~ nonassessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) Each Bank Subsidiary is duly organized and validly existing, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect; the outstanding capital stock of each Bank Subsidiary is owned of record and beneficially by the Bank, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (vi) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, the Bank and each Bank Subsidiary has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company, the MHC, the Holding Company, the Bank and each Bank Subsidiary are complying therewith in all material respects. (vii) The Bank Association is a member of the FHLB of New ~~York. The Bank~~ York and the Association is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of ~~the federal deposit~~ such insurance ~~of the Bank~~ are pending ~~or, to such counsel’s knowledge,~~ or threatened. (~~viii~~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 consummation of the ~~Conversion~~Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued to the MHC upon incorporation of the Holding ~~Company to facilitate the Conversion~~Company); (b) the ~~Offer Shares~~ shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the ~~Shares~~ shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the ~~Holding Company~~Primary Parties, or arising or outstanding by operation of law or or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other ~~document known to such counsel~~document, except for the subscription rights under the Plan. (ixvi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 ~~and 12~~ hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws ~~and judicial decisions~~ relating to the rights of the contracting parties to equitable remedies). (xvii) The Plan has been duly adopted by the ~~Board~~ board of ~~Directors~~ directors of the ~~MHC, the Mid-Tier Holding Company, the Holding Company~~ Association and ~~the Bank and approved~~ by ~~the stockholders of the Mid-Tier Holding Company and~~ the members of the ~~MHC~~ Association, in the manner required by the ~~Conversion~~ MHC Regulations and the ~~articles of incorporation, charters~~ Association's respective charter and ~~bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank~~bylaws. (xiviii) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xii) The Conversion Application and the Holding Company Application OTS Applications have been approved by the OTS and the ~~Prospectus, the Members’ Proxy Statement,~~ Prospectus and the ~~Stockholders’~~ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such OTS approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the ~~Shares,~~ Shares and the consummation of the ~~Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered~~Reorganization. (~~xiii~~ix) The purchase by the Holding Company of all of the issued and outstanding capital stock of the ~~Bank~~ Association has been authorized by the ~~OTS,~~ OTS and no action has been ~~taken or~~ taken, or, to such counsel's knowledge, is pending or ~~threatened~~ threatened, to revoke any such authorization or approval. (~~xiv~~x) 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~~ issued, and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted ~~or, to such counsel’s knowledge, threatened by the Commission~~or threatened. (xvxi) The material tax consequences of the ~~Conversion~~ Reorganization are set forth in the Prospectus under the ~~captions “Summary —~~ caption ["The Reorganization and Offering -- Tax ~~Consequences” and “Federal and State Taxation~~Effects of the Reorganization.” "] The information in the Prospectus under the ~~captions “Summary —~~ caption ["The Reorganization and Offering -- Tax ~~Consequences” and “Federal and State Taxation”~~ Effects of the Reorganization"] has been reviewed by such counsel and fairly describes such ~~opinion~~ opinions rendered by such counsel and ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP~~ [local tax counsel] to the Primary Parties with respect to such matters. (~~xvi~~xii) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the ~~Prospectus,~~ Prospectus and such description describes in all material respects the rights of the holders thereof; the information in the Prospectus under the captions ["Restrictions on the Acquisition of the Company and the ~~form~~ Bank -- Absence of ~~certificate~~ Cumulative Voting" and "-- Authorization of Preferred Stock," "Restrictions on the Acquisition of the Company" and "Description of Capital Stock of the Company,"] to the extent that they constitute matters of law or legal conclusions, has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form. (~~xvii~~xiii) At the time the ~~Applications were approved~~ MHC Notice and ~~as of the Closing Date~~Application was approved, the ~~Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement~~ MHC Notice and Application (as amended or supplemented) ~~and~~ including the ~~Stockholders’ Proxy Statement (as amended or supplemented)~~Prospectus contained therein, complied as to form in all material respects with the requirements of the ~~Conversion~~ MHC Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation ~~and the business plan~~ as to which counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the OTS Applications. (~~xviii~~xiv) At the time that the Registration Statement became effective ~~and as of the Closing Date,~~ the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation ~~and the business plan~~ as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the ~~1933 Act Regulations~~rules and regulations promulgated thereunder. (~~xix~~xv) ~~There~~ To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, ~~or, to such counsel’s knowledge,~~ or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the ~~Conversion~~ Reorganization or the offer, sale or issuance of the Shares. (xxxvi) The information in the Prospectus under the captions ~~“Supervision and~~ "Regulation,~~” “Federal and State~~ " "Taxation,” “Comparison of Stockholders’ Rights for Existing Stockholders of Oneida Financial Corp.” “Restrictions on Acquisition of Oneida Financial Corp.,” “Description of Capital Stock of Oneida Financial Corp. Following the Conversion,” " and “"The ~~Conversion~~ Reorganization and Offering,” " to the extent that ~~such information~~ it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been ~~reviewed~~ prepared by such counsel and is accurate in all material ~~respects.~~ respects (~~xxi) None of~~ except as to the ~~Primary Parties are required~~ financial statements and other financial data included therein as to be registered as an investment company under the Investment Company Act of 1940. (xxii) None of the Primary Parties nor any Bank Subsidiary is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties or any Bank Subsidiary, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel ~~may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such~~ need express no opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance). (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related

Appears in 1 contract

Sources: Agency Agreement (Liberty Bancorp Inc /Nj/)

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