Attached files
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S-1 - FORM S-1 - Northfield Bancorp, Inc. | y84957sv1.htm |
EX-4 - EX-4 - Northfield Bancorp, Inc. | y84957exv4.htm |
EX-5 - EX-5 - Northfield Bancorp, Inc. | y84957exv5.htm |
EX-2 - EX-2 - Northfield Bancorp, Inc. | y84957exv2.htm |
EX-3.1 - EX-3.1 - Northfield Bancorp, Inc. | y84957exv3w1.htm |
EX-8.2 - EX-8.2 - Northfield Bancorp, Inc. | y84957exv8w2.htm |
EX-1.1 - EX-1.1 - Northfield Bancorp, Inc. | y84957exv1w1.htm |
EX-3.2 - EX-3.2 - Northfield Bancorp, Inc. | y84957exv3w2.htm |
EX-99.3 - EX-99.3 - Northfield Bancorp, Inc. | y84957exv99w3.htm |
EX-99.4 - EX-99.4 - Northfield Bancorp, Inc. | y84957exv99w4.htm |
EX-99.1 - EX-99.1 - Northfield Bancorp, Inc. | y84957exv99w1.htm |
EX-23.2 - EX-23.2 - Northfield Bancorp, Inc. | y84957exv23w2.htm |
EX-23.3 - EX-23.3 - Northfield Bancorp, Inc. | y84957exv23w3.htm |
EX-99.5 - EX-99.5 - Northfield Bancorp, Inc. | y84957exv99w5.htm |
EX-99.6 - EX-99.6 - Northfield Bancorp, Inc. | y84957exv99w6.htm |
EX-99.2 - EX-99.2 - Northfield Bancorp, Inc. | y84957exv99w2.htm |
Exhibit 8.1
FORM OF FEDERAL TAX OPINION
, 2010
Boards of Trustees and Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
Ladies and Gentlemen:
You have requested this firms opinion regarding the material federal income tax consequences
that will result from the conversion of Northfield Bancorp, MHC, a federal mutual holding company
(the Mutual Holding Company) into the capital stock form of organization (the Conversion)
pursuant to the Plan of Conversion and Reorganization of Northfield Bancorp, MHC dated June 4, 2010
(the Plan) and the integrated transactions described below.
In connection with rendering our opinion, we have made such investigations as we have deemed
relevant or necessary for the purpose of this opinion. In our examination, we have assumed the
authenticity of original documents, the accuracy of copies and the genuineness of signatures. We
have further assumed the absence of adverse facts not apparent from the face of the instruments
and documents we examined and have relied upon the accuracy of the factual matters set forth in
the Plan and the Registration Statement filed by Northfield Bancorp, Inc., a Delaware corporation
(the Holding Company) with the Securities and Exchange Commission (SEC) under the Securities
Act of 1933, as amended, and the Application for Conversion on Form AC filed by the Mutual Holding
Company with the Office of Thrift Supervision (the OTS). In addition, we are relying on a
letter from RP Financial, LC. to you dated , 2010 stating its belief as to certain
valuation matters described below. Capitalized terms used but not defined herein shall have the
same meaning as set forth in the Plan. Furthermore, we assume that each of the parties to the
Conversion will comply with all reporting obligations with respect to the Conversion required
under the Internal Revenue Code of 1986, as amended (the Code), and the regulations thereunder
(the Treasury Regulations).
Our opinion is based upon the existing provisions of the Code, the Treasury Regulations and
upon current Internal Revenue Service (IRS) published rulings and existing court decisions, any
of which could be changed at any time. Any such changes may be retroactive and could
significantly modify the statements and opinions expressed herein. Similarly, any change in the
facts and assumptions stated below, upon which this opinion is based, could modify the
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 2
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 2
conclusions. This opinion is as of the date hereof, and we disclaim any obligation to advise you
of any change in any matter considered herein after the date hereof.
We opine only as to the matters we expressly set forth herein, and no opinions should be
inferred as to any other matters or as to the tax treatment of the transactions that we do not
specifically address. We express no opinion as to other federal laws and regulations, or as to
laws and regulations of other jurisdictions, or as to factual or legal matters other than as set
forth herein.
For purposes of this opinion, we are relying on the representations as to factual matters
provided to us by the Mutual Holding Company, Northfield Bank (the Bank), Northfield Bancorp,
Inc., a federal mid-tier holding company (Mid-Tier Holding Company) and the Holding Company,
as set forth in the certificates for each of those aforementioned entities and signed by
authorized officers of each of the aforementioned entities, incorporated herein by reference.
DESCRIPTION OF PROPOSED TRANSACTION
Based upon our review of the documents described above, and in reliance upon such documents,
we understand that the relevant facts are as follows. The Bank is a federally-chartered savings
bank that was established in 1887. Northfield Bank conducts business primarily from its home
office located in Staten Island, New York, its operation center located in Woodbridge, New Jersey,
its 17 additional branch offices located in New York and New Jersey and its lending office located
in Georgia. The Bank has been organized in the mutual holding company structure since 1995, and
in the two-tiered mutual holding company structure since 2002. In 2007, the Mid-Tier Holding
Company sold 19,265,316 shares of its common stock to the public, representing 43.0% of its
then-outstanding shares, at $10.00 per share. The Mutual Holding Company held 24,641,684 shares
and 896,061 shares were issued to Northfield Bank Foundation in connection with the initial stock
offering. The Mutual Holding Company is a mutual holding company with no stockholders. The
Mutual Holding Company has members (e.g., the depositors of the Bank), who are entitled upon the
complete liquidation of the Mutual Holding Company to liquidation proceeds after the payment of
creditors.
The Board of Trustees of the Mutual Holding Company has adopted the Plan providing for the
conversion of the Mutual Holding Company from a federally chartered mutual holding company to the
capital stock form of organization. As part of the Conversion, the Holding Company will succeed to
all the rights and obligations of the Mutual Holding Company and the Mid-Tier Holding Company and
will offer shares of Holding Company Common Stock to the Banks
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 3
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 3
depositors, current stockholders of the Mid-Tier Holding Company and members of the general public
in the Offering.
Pursuant to the Plan, the Conversion will be effected as follows, in such order as is
necessary to consummate the Conversion:
(1) | The Mid-Tier Holding Company will organize the Holding Company as a first-tier subsidiary chartered in Delaware. | ||
(2) | The Mutual Holding Company will merge with and into the Mid-Tier Holding Company with the Mid-Tier Holding Company as the resulting entity (the MHC Merger), whereby the shares of Mid-Tier Holding Company held by the Mutual Holding Company will be cancelled and the members of the Mutual Holding Company will constructively receive liquidation interests in Mid-Tier Holding Company in exchange for their liquidation rights in the Mutual Holding Company. | ||
(3) | Immediately after the MHC Merger, the Mid-Tier Holding Company will merge with and into the Holding Company (the Mid-Tier Merger), with the Holding Company as the resulting entity. As part of the Mid-Tier Merger, the liquidation interests in Mid-Tier Holding Company constructively received by the members of Mutual Holding Company will automatically, without further action on the part of the holders thereof, be exchanged for interests in the Liquidation Account and the Minority Shares will automatically, without further action on the part of the holders thereof, be converted into and become the right to receive Holding Company Common Stock based on the Exchange Ratio. | ||
(4) | Immediately after the Mid-Tier Merger, the Holding Company will offer for sale Holding Company Common Stock in the Offering. | ||
(5) | The Holding Company will contribute at least 50% of the net proceeds of the Offering to the Bank in constructive exchange for common stock of the Bank and the Bank Liquidation Account. |
Following the Conversion, a Liquidation Account will be maintained by the Holding Company for
the benefit of Eligible Account Holders and Supplemental Eligible Account Holders who continue to
maintain their deposit accounts with the Bank. Pursuant to Section 19
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 4
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 4
of the Plan, the Liquidation Account will be equal to the product of (a) the percentage of the
outstanding shares of the common stock of the Mid-Tier Holding Company owned by the Mutual Holding
Company multiplied by (b) the Mid-Tier Holding Companys total stockholders equity as reflected in
the latest statement of financial condition contained in the final Prospectus utilized in the
Conversion plus the value of the net assets of the Mutual Holding Company as reflected in the
latest statement of financial condition of the Mutual Holding Company prior to the effective date
of the Conversion (excluding its ownership of Mid-Tier Holding Company common stock). The terms of
the Liquidation Account and Bank Liquidation Account are described in Section 19 of the Plan.
As part of the Conversion, all of the then-outstanding shares of Mid-Tier Holding Company
common stock owned by the Minority Stockholders will be converted into and become shares of Holding
Company Common Stock pursuant to the Exchange Ratio that ensures that after the Conversion,
Minority Stockholders will own in the aggregate the same percentage of Holding Company Common Stock
as they held in Mid-Tier Holding Company common stock immediately prior to the Conversion,
exclusive of Minority Stockholders purchases of additional shares of Holding Company Common Stock
in the Offering and receipt of cash in lieu of fractional shares. As part of the Conversion,
additional shares of Holding Company Common Stock will be offered for sale on a priority basis to
depositors and eligible borrowers of the Bank, to current shareholders of the Mid-Tier Holding
Company and to members of the public in the Offering.
As a result of the Conversion and Offering, the Holding Company will be a publicly-held
corporation, will register the Holding Company Common Stock under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), and will become subject to the rules and
regulations thereunder and file periodic reports and proxy statements with the SEC. The Bank will
become a wholly owned subsidiary of the Holding Company and will continue to carry on its business
and activities as conducted immediately prior to the Conversion.
The stockholders of the Holding Company will be the former Minority Stockholders of the
Mid-Tier Holding Company immediately prior to the Conversion, plus those persons who purchase
shares of Holding Company Common Stock in the Offering. Nontransferable rights to subscribe for
the Holding Company Common Stock have been granted, in order of priority, to Eligible Account
Holders, the Banks tax-qualified employee plans (Employee Plans), Supplemental Eligible Account
Holders and certain depositors of the Bank as of the Voting Record Date (Other Members).
Subscription rights are nontransferable. The Holding Company will also offer shares of Holding
Company Common Stock not subscribed for in the Subscription Offering, if any, for sale in a
Community Offering or Syndicated Community Offering to certain members of the general public (with
preferences given to natural persons and trusts of natural
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 5
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 5
persons residing in the New Jersey counties of Bergen, Essex, Hudson, Hunterdon, Middlesex,
Monmouth, Morris, Ocean, Passaic, Somerset, Sussex and Union, the New York Counties of Bronx,
Kings, Nassau, New York, Putnam, Queens, Richmond, Rockland, Suffolk and Westchester, and Pike
County, Pennsylvania.
OPINIONS
Based on the foregoing description of the Conversion, including the MHC Merger and the
Mid-Tier Merger, and subject to the qualifications and limitations set forth in this letter, we
are of the opinion that:
1. The MHC Merger will qualify as a tax-free reorganization within the meaning of Section
368(a)(1)(A) of the Code. (Section 368(a)(l)(A) of the Code.)
2. The constructive exchange of the Eligible Account Holders and Supplemental Eligible Account
Holders ownership interests (e.g., liquidation and voting rights) in the Mutual Holding Company for
liquidation interests in the Mid-Tier Holding Company in the MHC Merger will satisfy the continuity
of interest requirement of Section 1.368-1(b) of the Income Tax Regulations. (cf. Rev. Rul. 69-3,
1969-1 C.B. 103, and Rev. Rul. 69-646, 1969-2 C.B. 54.)
3. No gain or loss will be recognized by the Mutual Holding Company on the transfer of its
assets to the Mid-Tier Holding Company and the Mid-Tier Holding Companys assumption of its
liabilities, if any, in constructive exchange for liquidation interests in the Mid-Tier Holding
Company or on the constructive distribution of such liquidation interests to members of the Mutual
Holding Company. (Section 361(a), 361(c) and 357(a) of the Code.)
4. No gain or loss will be recognized by the Mid-Tier Holding Company upon the receipt of
the assets of the Mutual Holding Company in the MHC Merger in exchange for the constructive
transfer to the members of the Mutual Holding Company of the liquidation interests in the
Mid-Tier Holding Company. (Section 1032(a) of the Code.)
5. Persons who have ownership interests in the Mutual Holding Company will recognize no
gain or loss upon the constructive receipt of liquidation interests in the Mid-Tier Holding
Company in exchange for their ownership interests in the Mutual Holding Company. (Section
354(a) of the Code.)
6. The basis of the assets of Mutual Holding Company (other than stock in the Mid-Tier
Holding Company) to be received by the Mid-Tier Holding Company will be the same as
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 6
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 6
the basis of such assets in the Mutual Holding Company immediately prior to the transfer.
(Section 362(b) of the Code.)
7. The holding period of the assets of the Mutual Holding Company transferred to the Mid-Tier
Holding Company will include the holding period of those assets in Mutual Holding Company.
(Section 1223(2) of the Code.)
8. The Mid-Tier Merger will constitute a mere change in identity, form or place of
organization within the meaning of Section 368(a)(1)(F) of the Code and therefore will qualify as
a tax-free reorganization within the meaning of Section 368(a)(1)(F) of the Code. (Section
368(a)(1)(F) of the Code.)
9. The Mid-Tier Holding Company will not recognize any gain or loss on the transfer of its
assets to the Holding Company and the Holding Companys assumption of its liabilities in exchange
for shares of Holding Company Common Stock or the distribution of such stock to Minority
Stockholders and distribution of interests in the Liquidation Account to the Eligible Account
Holders and Supplemental Eligible Account Holders. (Sections 361(a), 361(c) and 357(a) of the
Code.)
10. No gain or loss will be recognized by the Holding Company upon the receipt of the
assets of Mid-Tier Holding Company in the Mid-Tier Merger. (Section 1032(a) of the Code.)
11. The basis of the assets of the Mid-Tier Holding Company to be received by the Holding
Company will be the same as the basis of such assets in the Mid-Tier Holding Company immediately
prior to the transfer. (Section 362(b) of the Code.)
12. The holding period of the assets of Mid-Tier Holding Company to be received by the
Holding Company will include the holding period of those assets in the Mid-Tier Holding Company
immediately prior to the transfer. (Section 1223(2) of the Code.)
13. Mid-Tier Holding Company shareholders will not recognize any gain or loss upon their
exchange of Mid-Tier Holding Company common stock for Holding Company Common Stock. (Section
354 of the Code.)
14. Eligible Account Holders and Supplemental Eligible Account Holders will not recognize any
gain or loss upon their exchange of their liquidation interests in Mid-Tier Holding Company which
they constructively received for interests in the Liquidation Account in the Holding Company.
(Section 354 of the Code.)
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 7
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 7
15. The exchange of the Eligible Account Holders and Supplemental Eligible Account Holders
liquidation interests in the Mid-Tier Holding Company which they constructively received in the MHC
Merger for interests in a Liquidation Account established in the Holding Company will satisfy the
continuity of interest requirement of Section 1.368-1(b) of the Income Tax Regulations. (cf. Rev.
Rul. 69-3, 1969-1 C.B. 103, and Rev. Rul. 69-646, 1969-2 C.B. 54.)
16. The payment of cash to the Minority Stockholders in lieu of fractional shares of Holding
Company Common Stock will be treated as though the fractional shares were distributed as part of
the Mid-Tier Merger and then redeemed by Holding Company. The cash payments will be treated as
distributions in full payment for the fractional shares deemed redeemed under Section 302(a) of the
Code, with the result that such shareholders will have short-term or long-term capital gain or loss
to the extent that the cash they receive differs from the basis allocable to such fractional
shares. (Rev. Rul. 66-365, 1966-2 C.B. 116 and Rev. Proc. 77-41, 1977-2 C.B. 574.)
17. It is more likely than not that the fair market value of the nontransferable subscription
rights to purchase Holding Company Common Stock is zero. Accordingly, it is more likely than not
that no gain or loss will be recognized by Eligible Account Holders, Supplemental Eligible Account
Holders and Other Voting Members upon distribution to them of nontransferable subscription rights
to purchase shares of Holding Company Common Stock. (Section 356(a) of the Code.) Eligible
Account Holders, Supplemental Eligible Account Holders and Other Voting Members will not realize
any taxable income as a result of their exercise of the nontransferable subscriptions rights.
(Rev. Rul. 56-572, 1956-2 C.B. 182.)
18. It is more likely than not that the fair market value of the benefit provided by the Bank
Liquidation Account supporting the payment of the Liquidation Account in the event the Holding
Company lacks sufficient net assets is zero. Accordingly, it is more likely than not that no gain
or loss will be recognized by Eligible Account Holders and Supplemental Eligible Account Holders
upon the constructive distribution to them of such rights in the Bank Liquidation Account as of the
effective date of the Mid-Tier Merger. (Section 356(a) of the Code.)
19. Each shareholders aggregate basis in his or her Holding Company Common Stock received
in the exchange will be the same as the aggregate basis of the Mid-Tier Holding Company common
stock surrendered in exchange therefore. (Section 358(a) of the Code.)
20. Because it is more likely than not that the subscription rights have no value, it is
more likely than not that the basis of the Holding Company Common Stock purchased in the
Offering by the exercise of the nontransferable subscription rights will be the purchase price
thereof. (Section 1012 of the Code.)
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 8
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 8
21. Each shareholders holding period in his or her Holding Company Common Stock received in
the exchange will include the period during which the Mid-Tier Holding Company common stock
surrendered was held, provided that the common stock surrendered is a capital asset in the hands of
the shareholder on the date of the exchange. (Section 1223(1) of the Code.)
22. The holding period of the Holding Company Common Stock purchased pursuant to the exercise
of subscriptions rights will commence on the date on which the right to acquire such stock was
exercised. (Section 1223(5) of the Code.)
23. No gain or loss will be recognized by the Holding Company on the receipt of money in
exchange for Holding Company Common Stock sold in the Offering. (Section 1032 of the Code.)
Our opinion under paragraph 20 above is predicated on the representation that no person shall
receive any payment, whether in money or property, in lieu of the issuance of subscription rights.
Our opinions under paragraphs 17, 19 and 20 are based on the position that the subscription rights
to purchase shares of Holding Company Common Stock received by Eligible Account Holders,
Supplemental Eligible Account Holders and Other Members have a fair market value of zero. We
understand that the subscription rights will be granted at no cost to the recipients, will be
legally nontransferable and of short duration, and will provide the recipient with the right only
to purchase shares of Holding Company Common Stock at the same price to be paid by members of the
general public in any Community Offering or Syndicated Community Offering. We also note that the
IRS has not in the past concluded that subscription rights have value. In addition, we are relying
on a letter from RP Financial, LC. to you stating its belief that subscription rights do not have
any economic value at the time of distribution or at the time the rights are exercised in the
Subscription Offering. Based on the foregoing, we believe it is more likely than not that the
nontransferable subscription rights to purchase Holding Company Common Stock have no value.
If the subscription rights are subsequently found to have an economic value, income may be
recognized by various recipients of the subscription rights (in certain cases, whether or not
the rights are exercised) and the Holding Company and/or the Bank may be taxable on the
distribution of the subscription rights.
Our opinion under paragraph 18 above is based on the position that the benefit provided by
the Bank Liquidation Account supporting the payment of the Liquidation Account in the event the
Holding Company lacks sufficient net assets has a fair market value of zero. We understand
that: (i) no holder of an interest in a liquidation account has ever received
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 9
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 9
payment attributable to such interest in a liquidation account; (ii) the interests in the
Liquidation Account and Bank Liquidation Account are not transferable; (iii) the amounts due
under the Liquidation Account with respect to each Eligible Account Holder and Supplemental
Eligible Account Holder will be reduced as their deposits in the Bank are reduced as described
in the Plan; and (iv) the Bank Liquidation Account payment obligation arises only if the
Holding Company lacks sufficient net assets to fund the Liquidation Account. We also note that
the U.S. Supreme Court in Paulsen v. Commissioner, 469 U.S. 131 (1985) stated the following:
The right to participate in the net proceeds of a solvent liquidation is also not a
significant part of the value of the shares. Referring to the possibility of a solvent
liquidation of a mutual savings association, this Court observed: It stretches the
imagination very far to attribute any real value to such a remote contingency, and when
coupled with the fact that it represents nothing which the depositor can readily
transfer, any theoretical value reduces almost to the vanishing point. Society for the
Savings v. Bowers, 349 U.S. 143, 150 (1955).
In addition, we are relying on a letter from RP Financial, LC. to you stating its belief that
the benefit provided by the Bank Liquidation Account supporting the payment of the Liquidation
Account in the event the Holding Company lacks sufficient net assets does not have any economic
value at the time of the Conversion. Based on the foregoing, we believe it is more likely than
not that such rights in the Bank Liquidation Account have no value.
If such rights in the Bank Liquidation Account are subsequently found to have an economic
value, income may be recognized by each Eligible Account Holder and Supplemental Eligible
Account Holder in the amount of the fair market value as of their interest in the Bank
Liquidation Account the effective date of the Conversion.
Boards of Directors
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 10
Northfield Bancorp, MHC
Northfield Bancorp, Inc. (Federal)
Northfield Bancorp, Inc. (Delaware)
Northfield Bank
, 2010
Page 10
CONSENT
We hereby consent to the filing of the opinion as an exhibit to the Mutual Holding Companys
Application for Conversion filed with the OTS and to the Holding Companys Registration Statement
on Form S-1 as filed with the SEC. We also consent to the references to our firm in the Prospectus
contained in the Application for Conversion and Form S-1 under the captions The Conversion and
Offering-Material Income Tax Consequences and Legal Matters.
Very truly yours,
Luse Gorman Pomerenk & Schick P.C.