Appears in 1 contract

Samples: Securities Purchase Agreement (Stewardship Financial Corp)

Appears in 1 contract

Samples: Securities Purchase Agreement (DNB Financial Corp /Pa/)

Appears in 1 contract

Samples: Securities Purchase Agreement (Howard Bancorp Inc)

Certain Offerings by Treasury. An “underwritten” offering or other disposition shall include any distribution of such securities on behalf of Treasury by one or more broker-dealers, an “underwriting agreement” shall include any purchase agreement entered into by such broker-dealers, and any “registration statement” or “prospectus” shall include any offering document approved by the Company and used in connection with such distribution. Annex E (Registration Rights) Annex F (Form of Certificate of Designations) In connection with that certain Securities Purchase Agreement, dated ~~September 1~~[____________], 2011 (the “Agreement”) by and between ~~Stewardship Financial Corporation~~ [COMPANY] (the “Company”) and the Secretary of the Treasury, the undersigned does hereby certify as follows: 1. I am a duly elected/appointed ~~President and Chief Executive Officer~~ [____________] of the Company. 2. Attached as Exhibit A hereto is a true, complete and correct copy of the articles of incorporation, articles of association, or similar organizational document of the Company and any amendments thereto as presently on file with the ~~Department~~ [Secretary of ~~Treasury~~ State] of the State of ~~New Jersey~~[State]. 3. Attached as Exhibit B hereto is a true, complete and correct copy of the by-laws of the Company as presently in effect. 4. Attached as Exhibit C hereto is a true, complete and correct copy of resolutions adopted [at a duly convened meeting at which a quorum was present and acting /by unanimous written consent] of the Board of Directors of the Company (the “Board”). Such resolutions are now in full force and effect and have not been modified, amended or revoked and are the only resolutions of the Board relating to the Agreement. 5. Attached as Exhibit D hereto is a true, complete and correct copy of the resolutions adopted [at a duly convened meeting at which a quorum was present and acting /by unanimous written consent] of the [shareholders] of the Company (the “[Shareholders]”). Such resolutions are now in full force and effect and have not been modified, amended or revoked and are the only resolutions of the [Shareholders] relating to the Agreement. –OR- Shareholder consent is not required in connection with the execution, delivery and performance of the Agreement by the Company. 6. Attached as Exhibit D E is a true, complete and correct copy of the Certificate of Designation, which has been filed with, and accepted by, the ~~Department~~ Secretary of ~~Treasury~~ State of the State of ~~New Jersey~~[___________]. 7. The representations and warranties of the Company set forth in Article II of Annex C of the Agreement are true and correct in all respects as though as of the date hereof (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and Annex G (Form of Officer’s Certificate) the Company has performed in all material respects all obligations required to be performed by it under the Agreement. The foregoing certifications are made and delivered as of ~~September 1, 2011~~ [_________] pursuant to Section 1.3 of Annex C of the Agreement. ~~Annex G (Form of Officer's Certificate)~~ Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Agreement. Annex G (Form of Officer's ’s Certificate) IN WITNESS WHEREOF, this Officer’s Certificate has been duly executed and delivered as of the ~~1st~~ [__] day of ~~September~~[__________], 2011. By: Name: ~~Xxxx Xxx Xxxxxxxxxxx~~ Title: ~~President and Chief Executive Officer~~ Annex G (Form of Officer's ’s Certificate) Annex G (Form of Officer's ’s Certificate) Annex G (Form of Officer's ’s Certificate) Annex G (Form of Officer's ’s Certificate) Annex G (Form of Officer's ’s Certificate) Annex G (Form of Officer’s Certificate) Annex H (Form of Supplemental Reports) Annex H (Form of Supplemental Reports) [COMPANY] In connection with that certain Securities Purchase Agreement, dated [____________], 2011 (the “Agreement”) by and between [COMPANY] (the “Company”) and the Secretary of the Treasury (“Treasury”), the undersigned does hereby certify as follows: 1. I am a duly elected/appointed [____________] of the Company. 2. For each loan originated by the Company or any of its Affiliates that was funded in whole or in part using funds from the Purchase Price, the Company has obtained from the business to which it made such loan a written certification that no principal of such business has been convicted of a sex offense against a minor (as such terms are defined in section 111 of the Sex Offender Registration and Notification Act, 42 U.S.C. §16911). The Company shall retain all such certifications in accordance with standard recordkeeping practices established by the Appropriate Federal Banking Agency. 3. The Company is in compliance with the requirements of Section ~~103.121~~ 1020.220 of title 31, Code of Federal Regulations. The foregoing certifications are made and delivered as of [_________] pursuant to Section 3.1(d)(iii) of Annex C of the Agreement. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Agreement. Annex I (Form of Annual Certification) IN WITNESS WHEREOF, this Certificate has been duly executed and delivered as of the [__] day of [__________], 20[__]. By: Name: Title: Annex I (Form of Annual Certification) Secretary of the Treasury 0000 Xxxxxxxxxxxx Xxxxxx, XX Xxxxxxxxxx, X.X. 00000 Attention: Small Business Lending Fund, Office of Domestic Finance Re: [Institution Name] [SBLF Identification No.] Ladies and/or Gentlemen: We have acted as counsel for [insert Institution Name] (the “Company”) in connection with the sale and issuance of [insert number] shares of [Senior] Non-Cumulative Perpetual Preferred Stock, Series [___] (the “Preferred Shares”) to the Secretary of the Treasury (the “Treasury”) pursuant to and in accordance with the terms of that certain Small Business Lending Fund - Securities Purchase Agreement, dated [____________, 2011] (the “Agreement”). This letter is rendered to you pursuant to Section 1.3(f) of the Agreement and Annex J attached thereto. Unless otherwise defined herein, capitalized terms used herein shall have the meaning set forth in the Agreement. (a) The Company has been duly formed and is validly existing as a [TYPE OF ORGANIZATION] and is in good standing under the laws of the jurisdiction of its organization. The Company has all necessary power and authority to own, operate and lease its properties and to carry on its business as it is being conducted. (b) The Company has been duly qualified as a foreign entity for the transaction of business and is in good standing under the laws of [_____________], [_____________] and [_____________]. (c) The Preferred Shares have been duly and validly authorized, and, when issued and delivered pursuant to the Agreement, the Preferred Shares will be duly and validly issued and fully paid and non-assessable, will not be issued in violation of any preemptive rights, and will rank pari passu with or senior to all other series or classes of designated preferred stock authorized on the Closing Date with respect to the payment of dividends and the distribution of assets in the event of any dissolution, liquidation or winding up of the Company. (d) The Company has the corporate power and authority to execute and deliver the Agreement and to carry out its obligations thereunder (which includes the issuance of the Preferred Shares). (e) The execution, delivery and performance by the Company of the Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of the Company and its stockholders, and no further approval or authorization is required on the part of the Company, including, without limitation, by any rule or requirement of any national stock exchange. Annex J (Form of Opinion) (f) The Agreement is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity. (g) The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations thereunder (i) do not require any approval by any Governmental Entity to be obtained on the part of the Company, except those that have been obtained, (ii) do not violate or conflict with any provision of the Charter, (iii) do not violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of, any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or any Company Subsidiary under any of the terms, conditions or provisions of its organizational documents or under any agreement, contract, indenture, lease, mortgage, power of attorney, evidence of indebtedness, letter of credit, license, instrument, obligation, purchase or sales order, or other commitment, whether oral or written, to which it is a party or by which it or any of its properties is bound or (iv) do not conflict with, breach or result in a violation of, or default under any judgment, decree or order known to us that is applicable to the Company and, pursuant to any applicable laws, is issued by any Governmental Entity having jurisdiction over the Company. (h) Other than the filing of the Certificate of Designation with the [Secretary of State] of its jurisdiction of organization or other applicable Governmental Entity, such filings and approvals as are required to be made or obtained under any state “blue sky” laws and such consents and approvals that have been made or obtained, no notice to, filing with, exemption or review by, or authorization, consent or approval of, any Governmental Entity is required to be made or obtained by the Company in connection with the consummation by the Company of the Purchase. Annex J (Form of Opinion) Dear Ladies and Gentlemen: Reference is made to that certain Letter Agreement incorporating the Securities Purchase Agreement – Standard Terms (the “Securities Purchase Agreement”), dated as of the date set forth on Schedule A hereto, between the United States Department of the Treasury (the “Investor”) and the company set forth on Schedule A hereto (the “Company”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Securities Purchase Agreement. Pursuant to the Securities Purchase Agreement, at the Closing, the Company issued to the Investor the number of shares of the series of its preferred stock set forth on Schedule A hereto (the “Preferred Shares”) and a warrant (the “Warrant”) to purchase the number of shares of [To be included for private issuers: the series of its preferred stock set forth on Schedule A hereto (such shares, the “Warrant Shares”), which was exercised by the Investor at Closing.] [To be included for public issuers: its common stock set forth on Schedule A hereto.] In connection with the consummation of the repurchase (the “Repurchase”) by the Company from the Investor, on the date hereof, of the number of Preferred Shares listed on Schedule A hereto (the “Repurchased Preferred Shares”) [To be included for private issuers who are repurchasing some or all of the Warrant Shares: and the number of Warrant Shares listed on Schedule A hereto (the “Repurchased Warrant Shares”)], as permitted by the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009: (a) The Company hereby acknowledges receipt from the Investor of the share certificate(s) set forth on Schedule A hereto representing the Preferred Shares; [and] (b) The Investor hereby acknowledges receipt from the Company of a wire transfer for the account of the Investor in immediately available funds of the aggregate purchase price set forth on Schedule A hereto, representing payment in full for the Repurchased Preferred Shares at a price per share equal to the Liquidation Amount per share, together with any accrued and unpaid dividends to, but excluding, the date hereof; [Paragraphs (c) and (d) to be included for private issuers who are repurchasing some or all of the Warrant Shares: (c) The Company hereby acknowledges receipt from the Investor of the share certificate(s) set forth on Schedule A hereto representing the Warrant Shares; [and]

Appears in 1 contract

Samples: Securities Purchase Agreement (QCR Holdings Inc)

Appears in 1 contract

Samples: Securities Purchase Agreement (First Savings Financial Group Inc)

Appears in 1 contract

Samples: Securities Purchase Agreement (Mutualfirst Financial Inc)

Appears in 1 contract

Samples: Securities Purchase Agreement (Simmons First National Corp)

Appears in 1 contract

Samples: Securities Purchase Agreement (Oak Valley Bancorp)

Certain Offerings by Treasury. An “underwritten” offering or other disposition shall include any distribution of such securities on behalf of Treasury by one or more broker-dealers, an “underwriting agreement” shall include any purchase agreement entered into by such broker-dealers, and any “registration statement” or “prospectus” shall include any offering document approved by the Company and used in connection with such distribution. Annex E (Registration Rights) Annex F (Form of Certificate of Designations) In connection with that certain Securities Purchase Agreement, dated ~~September 1~~July 14, 2011 (the “Agreement”) by and between ~~Stewardship~~ First California Financial ~~Corporation~~ Group, Inc. (the “Company”) and the Secretary of the Treasury, the undersigned does hereby certify as follows: 1. I am a duly elected/appointed President and Chief Executive Officer of the Company. 2. Attached as Exhibit A hereto is a true, complete and correct copy of the articles of incorporation, articles of association, or similar organizational document of the Company and any amendments thereto as presently on file with the ~~Department~~ [Secretary of ~~Treasury~~ State] of the State of ~~New Jersey~~[State]. 3. Attached as Exhibit B hereto is a true, complete and correct copy of the by-laws of the Company as presently in effect. 4. Attached as Exhibit C hereto is a true, complete and correct copy of resolutions adopted [at a duly convened meeting at which a quorum was present and acting /by unanimous written consent] of the Board of Directors of the Company (the “Board”). Such resolutions are now in full force and effect and have not been modified, amended or revoked and are the only resolutions of the Board relating to the Agreement. 5. ~~Shareholder consent is not required in connection with the execution, delivery and performance of the Agreement by the Company. 6.~~ Attached as Exhibit D hereto is a true, complete and correct copy of the ~~Certificate of Designation,~~ resolutions adopted [at a duly convened meeting at which ~~has been filed with,~~ a quorum was present and ~~accepted by, the Department of Treasury~~ acting /by unanimous written consent] of the ~~State~~ [shareholders] of ~~New Jersey~~the Company (the “[Shareholders]”). Such resolutions are now in full force and effect and have not been modified, amended or revoked and are the only resolutions of the [Shareholders] relating to the Agreement. 76. The representations and warranties of the Company set forth in Article II of Annex C of the Agreement are true and correct in all respects as though as of the date hereof (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and the Company has performed in all material respects all obligations required to be performed by it under the Agreement. 7. The Certificate of Designation, a true, complete and correct copy of which is attached as Exhibit E hereto, has been filed with, and accepted by, the Secretary of State of the State of Delaware. The foregoing certifications are made and delivered as of ~~September 1~~July 14, 2011 pursuant to Section 1.3 of Annex C of the Agreement. ~~Annex G (Form of Officer's Certificate)~~ Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Agreement. Annex G (Form of Officer's Certificate) IN WITNESS WHEREOF, this Officer’s Certificate has been duly executed and delivered as of the ~~1st~~ 14th day of ~~September~~July, 2011. By: /s/ Name: ~~Xxxx Xxx Xxxxxxxxxxx~~ C. G. Kum Title: President and Chief Executive Officer ~~Annex G (Form of Officer's Certificate) Annex G (Form of Officer's Certificate) Annex G (Form of Officer's Certificate)~~ Annex G (Form of Officer's Certificate) Annex G (Form of Officer's Certificate) Annex H (Form of Supplemental Reports) Annex H (Form of Supplemental Reports) ~~[COMPANY]~~ In connection with that certain Securities Purchase Agreement, dated ~~[____________]~~July 14, 2011 (the “Agreement”) by and between ~~[COMPANY]~~ First California Financial Group, Inc. (the “Company”) and the Secretary of the Treasury (“Treasury”), the undersigned does hereby certify as follows: 1. I am a duly elected/appointed [____________] of the Company. 2. For each loan originated by the Company or any of its Affiliates that was funded in whole or in part using funds from the Purchase Price, the Company has obtained from the business to which it made such loan a written certification that no principal of such business has been convicted of a sex offense against a minor (as such terms are defined in section 111 of the Sex Offender Registration and Notification Act, 42 U.S.C. §16911). The Company shall retain all such certifications in accordance with standard recordkeeping practices established by the Appropriate Federal Banking Agency. 3. The Company is in compliance with the requirements of Section 103.121 of title 31, Code of Federal Regulations. The foregoing certifications are made and delivered as of [_________] pursuant to Section 3.1(d)(iii) of Annex C of the Agreement. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Agreement. Annex I (Form of Annual Certification) IN WITNESS WHEREOF, this Certificate has been duly executed and delivered as of the [__] day of [__________], 20[__]. By: /s/ Name Title Annex I (Form of Annual Certification) (a) The Company has been duly formed and is validly existing as a corporation and is in good standing under the laws of the jurisdiction of its organization. The Company has all necessary power and authority to own, operate and lease its properties and to carry on its business as it is being conducted. (b) The Company has been duly qualified as a foreign entity for the transaction of business and is in good standing under the laws of California. (c) The Preferred Shares have been duly and validly authorized, and, when issued and delivered pursuant to the Agreement, the Preferred Shares will be duly and validly issued and fully paid and non-assessable, will not be issued in violation of any preemptive rights, and will rank pari passu with or senior to all other series or classes of Preferred Stock issued on the Closing Date with respect to the payment of dividends and the distribution of assets in the event of any dissolution, liquidation or winding up of the Company. (d) The Company has the corporate power and authority to execute and deliver the Agreement and to carry out its obligations thereunder (which includes the issuance of the Preferred Shares). (e) The execution, delivery and performance by the Company of the Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of the Company and its stockholders, and no further approval or authorization is required on the part of the Company, including, without limitation, by any rule or requirement of any national stock exchange. (f) The Agreement is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity. (g) The execution and delivery by the Company of this Agreement and the performance by the Company of its obligations thereunder (i) do not require any approval by any Governmental Entity to be obtained on the part of the Company, except those that have been obtained, (ii) do not violate or conflict with any provision of the Charter, (iii) do not violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of, any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or any Company Subsidiary under any of the terms, conditions or provisions of its organizational documents or under any agreement, contract, indenture, lease, mortgage, power of attorney, evidence of indebtedness, letter of credit, license, instrument, obligation, purchase or sales order, or other commitment, whether oral or written, to Annex J (Form of Opinion) which it is a party or by which it or any of its properties is bound or (iv) do not conflict with, breach or result in a violation of, or default under any judgment, decree or order known to us that is applicable to the Company and, pursuant to any applicable laws, is issued by any Governmental Entity having jurisdiction over the Company. (h) Other than the filing of the Certificate of Designation with the Secretary of State of its jurisdiction of organization or other applicable Governmental Entity, such filings and approvals as are required to be made or obtained under any state “blue sky” laws and such consents and approvals that have been made or obtained, no notice to, filing with, exemption or review by, or authorization, consent or approval of, any Governmental Entity is required to be made or obtained by the Company in connection with the consummation by the Company of the Purchase. (i) The Company is not nor, after giving effect to the issuance of the Preferred Shares pursuant to the Agreement, would be on the date hereof an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended. Annex J (Form of Opinion) Dear Ladies and Gentlemen: Reference is made to that certain Letter Agreement incorporating the Securities Purchase Agreement – Standard Terms (the “Securities Purchase Agreement”), dated as of the date set forth on Schedule A hereto, between the United States Department of the Treasury (the “Investor”) and the company set forth on Schedule A hereto (the “Company”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Securities Purchase Agreement. Pursuant to the Securities Purchase Agreement, at the Closing, the Company issued to the Investor the number of shares of the series of its preferred stock set forth on Schedule A hereto (the “Preferred Shares”) and a warrant (the “Warrant”) to purchase the number of shares of its common stock set forth on Schedule A hereto. In connection with the consummation of the repurchase (the “Repurchase”) by the Company from the Investor, on the date hereof, of the number of Preferred Shares listed on Schedule A hereto (the “Repurchased Preferred Shares”), as permitted by the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009: (a) The Company hereby acknowledges receipt from the Investor of the share certificate(s) set forth on Schedule A hereto representing the Preferred Shares; and (b) The Investor hereby acknowledges receipt from the Company of a wire transfer for the account of the Investor in immediately available funds of the aggregate purchase price set forth on Schedule A hereto, representing payment in full for the Repurchased Preferred Shares at a price per share equal to the Liquidation Amount per share, together with any accrued and unpaid dividends to, but excluding, the date hereof;