Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company contained herein, and to the performance by the Company of its obligations hereunder and to each of the following additional terms and conditions: (a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement; (b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million. (c) The Company shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company by each of the President and Chief Executive Officer and the Chief Financial Officer of the Company, stating that: (i) The representations, warranties and agreements of the Company in Section 4.1 hereof are true and correct as of the Closing Date and the Company has complied with all its agreements contained herein; (ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial Statements), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) From the date of the Financial Statements to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g) hereof). (d) The Company shall have delivered a certificate of the Secretary of the Company, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company; (e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date; (f) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the Company, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby; (g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel to the Company, shall have furnished to the Purchaser its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as set forth in Exhibit C hereto; (h) The Company shall have delivered to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company). (i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Square 1 Financial Inc), Stock Purchase Agreement (Square 1 Financial Inc)
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser):
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President Chairman and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained hereinherein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto, the Registration Rights Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be performed, satisfied or complied with by it at or prior to the Closing;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall has not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect” means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (as defined A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(g) hereofgeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets).
(d) The Company shall have delivered a certificate , or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the Secretary of industries in which the Company, dated as of the Closing DateCorporation and its subsidiaries operate, (iB) certifying changes or proposed changes after the resolutions adopted by Signing Date in generally accepted accounting principles in the Board United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of Directors general applicability or related policies or interpretations of Governmental Authority (in the Company case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a duly authorized committee thereof approving materially disproportionate adverse effect on the transactions contemplated by this Agreement Corporation and the Registration Rights Agreement and the issuance of the Shares, its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) certifying the current versions ability of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as Corporation to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(f) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of consummate the Transactions by the Company, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel to the Company, shall have furnished to the Purchaser perform its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as set forth in Exhibit C hereto;
(h) The Company shall have delivered to the Purchasers obligations hereunder on a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company)timely basis.
(i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Equity Bancshares Inc), Stock Purchase Agreement (Equity Bancshares Inc)
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company Corporation shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation OfferingPrivate Placement, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 45.0 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial Statements), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iii) From the date of the Financial Statements to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g) hereof);
(iv) Such officers have carefully examined the Report (as defined in Section 3.1(j) hereof) and upon review thereof, no fact, circumstance, occurrence or development arises therefrom that individually or in the aggregate has or is reasonably expected to have a Material Adverse Effect; and
(v) As of the Closing Date, neither Square 1 Bank nor the Corporation are subject to higher minimum regulatory capital requirements imposed by a Governmental Authority (as defined in Section 3.1(f) hereof) than those existing as of the date of the Agreement (a “Capital Directive”) and such officers have no knowledge that either Square 1 Bank and/or the Corporation will be receiving, may receive or are likely to receive a Capital Directive.
(d) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the CompanyCorporation;
(e) The Company Corporation shall have delivered a certificate evidencing the formation and good standing of each of the Company Corporation and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(f) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel to the CompanyCorporation, shall have furnished to the Purchaser its written opinion, addressed to the Purchasers Purchaser and dated the Closing Date, substantially as set forth in Exhibit C hereto;
(h) The Company Corporation shall have delivered to the Purchasers Purchaser a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company Corporation (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation).
(i) The Corporation Square 1 Bank shall have filed received the written Report of Examination (the “Report”) issued by the FDIC and the Commissioner with the Secretary of State of the State of Delaware a Certificate of Amendment respect to the Certificate of Designation, Rights joint safety and Preferences for the Class B Common Stock soundness examination conducted thereby in the form attached hereto as Exhibit D.fourth quarter of 2009.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Square 1 Financial Inc), Stock Purchase Agreement (Square 1 Financial Inc)
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser):
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President Chairman and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained hereinherein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto, the Registration Rights Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be performed, satisfied or complied with by it at or prior to the Closing;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall has not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as defined a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) the ability of the Corporation to consummate the Transactions and perform its obligations hereunder on a timely basis.
(db) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;Corporation.
(ec) The Company Corporation shall have delivered (i) a certificate evidencing the formation good standing, and good standing (ii) a certified copy of all charter documents of record, in both cases (i) and (ii) above for each of the Company Corporation, Bank and Square 1 Bank any other “Subsidiaries” (as hereinafter defined) in its respective jurisdiction of formation formation, and due qualification as a foreign organization authorized to do business in any other jurisdiction in which it maintains any offices, issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of prior to the Closing Date;.
(fd) The Corporation shall have caused the issuance and delivery to Purchaser of certificates from (i) the Federal Deposit Insurance Corporation (the “FDIC”) confirming that each Bank’s deposits are currently insured by the FDIC, (ii) the Board of Governors of the Federal Reserve System (the “Federal Reserve”), certifying that Corporation is a registered bank holding company, (iii) the Office of the Comptroller of the Currency (“OCC”) that Equity Bank is a national banking association, and (iv) the Kansas state bank regulatory agency (the “Department”) certifying that Signature Bank is duly authorized as a commercial bank under Kansas law.
(e) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of without limitation the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (FDIC, the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) Department or any state securities regulator (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required to be obtained by the Corporation or the Purchaser for the consummation of the Transactions by the CompanyTransactions, as defined hereinherein (the foregoing are sometimes referred to herein as a “Required Approval” and collectively as “Required Approvals”), shall have been obtained or filed or shall have occurred and (as applicable) and, as to any order or orders, any such orders shall have become final, non-appealable ordersappealable, and there neither Purchaser nor Corporation shall have received written notice from or otherwise been notified by a Governmental Authority that it will not grant a Required Approval. At Purchaser’s sole option, no Required Approval shall (i) impose any condition or requirement that would reasonably be expected to be materially burdensome to the Purchaser (including without limitation any that, in Purchaser’s reasonable judgment, could impose material constraints or restrictions on the Purchaser’s current business or investments), or (ii) impose any restraint or condition on any limited partner of the Purchaser (including a requirement to file any application or notice under the BHC Act, the Change in Bank Control Act or any other federal or state banking law) (the foregoing, if identified by Purchaser, using its reasonable good faith judgment, by written notice to Corporation as “Burdensome Conditions,” are sometimes referred to herein individually as a “Burdensome Condition and collectively as “Burdensome Conditions”). For purposes of this Agreement, the imposition of a Burdensome Condition in connection with a Required Approval shall constitute a denial of such Required Approval and the Required Approval shall be deemed not received for all purposes in this Agreement, including but not limited to Section 6.15(b). The condition set forth in this subsection is sometimes referred to in this Agreement as the “Approval Condition.”
(f) As a condition precedent to Purchaser purchasing the Purchased Shares, Purchaser shall have received, to the extent required by applicable law or regulations, written confirmation from (a) the Federal Reserve of its Non-Control Determination as to Purchaser and the Department of its approval or non-objection for Purchaser to purchase the Purchased Shares; provided, however, that no such regulatory approval or non-objection or Non-Control Determination shall impose a Burdensome Condition and provided, further, that the imposition of one or more Burdensome Conditions in connection with a regulatory approval or Non-Control Determination shall constitute a denial of such regulatory approval or Non-Control Determination and such regulatory approval or Non-Control Determination shall be deemed not received for all purposes of this Agreement, including but not limited to Section 1.3 hereof.
(g) There shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;. The condition set forth in this subsection is sometimes referred to in this Agreement as the “Prohibition Condition.”
(gh) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, Independent legal counsel to the Company, Corporation reasonably satisfactory to Purchaser (“Corporation Counsel”) shall have furnished to the Purchaser its written opinion, addressed to the Purchasers Purchaser and dated the Closing Date, substantially as set forth in Exhibit C hereto;form and substance acceptable to Purchaser.
(hi) The Company Corporation shall have delivered to the Purchasers a schedule in the form Purchaser, at least five (5) business days prior to Closing, for Purchaser’s review, an updated copy of Schedule 3.1(h3.1(i) attached hereto (the “Capital Schedule”) that identifies certifies, as of the time immediately after the Closing and assuming the sale of the number of each type of Purchased Shares determined by Purchaser as contemplated by this Agreement, the number of shares shares, by class, series and type type, of all authorized, issued and outstanding capital stock, options options, warrants, subordinated debt instruments, trust preferred securities, hybrid debt or capital instruments, any debt or equity instruments convertible into shares of common stock of the Corporation, and other securities of the Company Corporation (in each case stating whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation); the Corporation shall attach to the Capital Schedule complete copies of the instruments defining all rights and all conversion features of each type of security listed on the Capital Schedule other than (i) Class A Common Stock, (ii) Class B Common Stock and (iii) the preferred stock issued to the United States Treasury in January 2009.
(ij) Except as set forth on Schedule 3.1(j), the Corporation shall not, at any time at or before the Closing or as part of the Offering, enter into any agreements with any investor or group of affiliated investors owning and/or committing to purchase any securities of the Corporation (“Other Significant Investor(s)”) containing, rights, obligations and provisions more favorable to the Other Significant Investor(s) than the rights, obligations and provisions set forth herein. The provisions of this Section 3.1(j) are a covenant as well as a condition and shall survive the Closing.
(k) The Corporation shall complete closing on and shall have filed with received the Secretary proceeds in collected funds for, the issuance and sale of State not less than an aggregate of $20,000,000 (2,000,000 shares) of Class A Common Stock in the State Offering, including for this purpose the shares of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in being purchased by Purchaser as part of the form attached hereto as Exhibit D.Purchased Shares.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company shall Corporation will have furnished to the Purchaser Purchasers a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President Chairman and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;; and
(ii) Such officers have carefully examined the Financial Statements Disclosure Materials (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared filed documents comprising part of the Financial StatementsDisclosure Materials), and as of the Closing Date, the Financial Statements Disclosure Materials do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and;
(iiib) From the date of the Financial Statements hereof to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) ), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g) hereof).
(dc) The Company shall have delivered a certificate of the Secretary of the CompanyExcept as set forth in Section 2.1 above, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(f) Any any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications declarations or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) market (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;.
(gd) Xxxxxxxxxx Xxxxxxxx The Corporation shall have executed and delivered Transaction Documents for the purchase of Securities for a minimum amount of sixty-million dollars ($60,000,000) in net proceeds to the Corporation, in the aggregate.
(e) Xxxxxxx Xxxxxx & Xxxxxxxx Aguggia LLP, counsel to the CompanyCorporation, shall have furnished to the Purchaser Purchasers its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as set forth in Exhibit C hereto;
(h) The Company shall have delivered to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company).
(if) The Corporation shall have filed with made any filings, including the Secretary Articles Supplementary, and received any necessary approvals under the Maryland General Corporation Law (the “MGCL”) in order to amend its Articles of State Incorporation to provide for the establishment and designation of the State Preferred Stock on the terms set forth in the Articles Supplementary and the issuance of Delaware a Certificate of Amendment such Preferred Stock to the Certificate Purchasers of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.Preferred Stock.
Appears in 1 contract
Samples: Stock Purchase Agreement (Provident Bankshares Corp)
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by such Purchaser):
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the such Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct in all material respects as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered or made available to the Purchasers), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall have not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as defined a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations), or (D) changes in the market price or trading volume of the Common Stock or any other equity, equity-related or debt securities of the Corporation or its Subsidiaries (it being understood and agreed that the exception set forth in this clause (D) does not apply to the underlying reason giving rise to or contributing to any such change); or (ii) the ability of the Corporation to consummate the Transactions and perform its obligations hereunder on a timely basis.
(dc) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the CompanyCorporation;
(ed) The Company Corporation shall have delivered (i) a certificate evidencing the formation good standing, and good standing (ii) to the extent possible, with Corporation’s exercise of diligent efforts, a certified copy of all charter documents of record, in both cases (i) and (ii) above for each of the Company Corporation, Bank, the “Trust Subsidiary” (as hereinafter defined), and Square 1 Bank Central Valley Community Insurance Services, LLC in its respective jurisdiction of formation formation, and due qualification as a foreign organization authorized to do business in any other jurisdiction in which it maintains any offices, issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of prior to the Closing Date; to the extent it is not possible, with Corporation’s exercise of diligent efforts, for Corporation to deliver the certified copies of the document referred to in clause (ii) above, such documents shall be certified by the Corporation prior to Closing as true and complete in all respects, and the Corporation shall deliver publicly certified documents as soon as possible following Closing;
(e) To the extent available, when available with the exercise of diligence by the Corporation, the certificates described in Section 5.2(d).
(f) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection nonobjection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of without limitation the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (FDIC, the “FDIC”) Department and the North Carolina Commissioner of Banks (the “Commissioner”) NASDAQ (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required to be obtained by the Corporation for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx Xxxxxx Brand LLP, counsel to the CompanyCorporation, shall have furnished to the Purchaser Purchasers its written opinion, addressed to the Purchasers and dated as of the Closing Date, substantially as set forth in Exhibit C B hereto;
(h) The Company Corporation shall have delivered to the Purchasers Purchasers, at least five (5) business days prior to Closing, a schedule in the form of Schedule 3.1(h) attached hereto (the “Capital Schedule”) that identifies certifies, as of the time immediately after the Closing and assuming the sale of the Purchased Shares as contemplated by this AgreementAgreement and as contemplated in the Patriot Closing, the number of shares shares, by class, series and type type, of all authorized, issued and outstanding capital stock, options options, warrants, subordinated debt instruments, hybrid debt or capital instruments, any debt or equity instruments convertible into shares of common stock of the Corporation, and other securities of the Company Corporation (in each case stating whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation); the Corporation shall attach to the Capital Schedule complete copies of the instruments defining all rights and all conversion features of each type of security listed on the Capital Schedule other than (i) Common Stock and (ii) the preferred stock issued to the United States Treasury in January 2009. Except for giving effect to the transactions contemplated by this Agreement and in the Patriot Closing, such schedule must not differ materially from Schedule 3.1(h) attached hereto.
(i) The Corporation Patriot Closing shall have filed with been consummated or shall be deemed to close simultaneous herewith.
(j) The Common Stock (i) shall be designated for quotation or listed on the Secretary of State Nasdaq Capital Market and (ii) shall not have been suspended, as of the State Closing Date, by the SEC or the Nasdaq Capital Market from trading on the Nasdaq Capital Market nor shall suspension by the SEC or the Nasdaq Capital Market have been threatened, as of Delaware a Certificate the Closing Date, either (A) in writing by the SEC or the Nasdaq Capital Market or (B) by falling below the minimum listing maintenance requirements of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.Nasdaq Capital Market.
Appears in 1 contract
Samples: Stock Purchase Agreement (Central Valley Community Bancorp)
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser the Purchaser(s) hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Issuer contained herein, and to the performance by the Company Issuer of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser(s)):
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Issuer shall have furnished to the Purchaser Purchaser(s) a certificate, dated the Closing Date, executed on behalf of the Company Issuer by each of the President and Chief Executive Officer and the Chief Financial Officer of the CompanyIssuer, stating that:
(i) The representations, warranties and agreements of the Company Issuer in Section 4.1 hereof are true and correct in all material respects as of the Closing Date and the Company Issuer has complied with all its agreements contained herein;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser(s)), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall have not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a "Material Adverse Effect" (for purposes of this Agreement, "Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Issuer taken as defined a whole; provided, however, that Issuer Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the "Signing Date") in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Issuer and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States ("GAAP") or regulatory accounting requirements, or authoritative interpretations thereof, (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Issuer taken as a whole relative to comparable U.S. banking or financial services organizations), or (D) changes in the market price or trading volume of the Common Stock or any other equity, equity-related or debt securities of the Issuer (it being understood and agreed that the exception set forth in this clause (D) does not apply to the underlying reason giving rise to or contributing to any such change); or (ii) the ability of the Issuer to consummate the Transactions and perform its obligations hereunder on a timely basis.
(db) The Company Issuer shall have delivered a certificate of the Secretary of the CompanyIssuer, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Issuer (the "Board") or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Issuer and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;Issuer.
(ec) The Company Issuer shall have delivered (i) a certificate evidencing the formation subsistence, and good standing (ii) a certified copy of each all charter documents of record, in both cases (i) and (ii) above for the Company and Square 1 Bank in its respective jurisdiction of formation Issuer, issued by the Secretary of State (or comparable office) the Commonwealth of such jurisdictionthe Commonwealth of Pennsylvania, as of a date within five (5) business days of prior to the Closing Date;.
(fd) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the Company, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there There shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;. The condition set forth in this subsection is sometimes referred to in this Agreement as the "Prohibition Condition."
(ge) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, Issuer's general counsel to the Company, ("Issuer Counsel") shall have furnished to the Purchaser Purchaser(s) its written opinion, addressed opinions substantially to the Purchasers and dated the Closing Date, substantially as effect set forth in on Exhibit C A hereto;
(h) The Company shall have delivered , subject to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies such reasonable or customary assumptions, qualifications and conditions as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company)may be acceptable to Issuer Counsel.
(i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser):
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President Chairman and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained hereinherein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto, the Registration Rights Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be performed, satisfied or complied with by it at or prior to the Closing;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall has not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as defined a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) the ability of the Corporation to consummate the Transactions and perform its obligations hereunder on a timely basis.
(db) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;Corporation.
(ec) The Company Corporation shall have delivered (i) a certificate evidencing the formation good standing, and good standing (ii) a certified copy of all charter documents of record, in both cases (i) and (ii) above for each of the Company Corporation, Bank and Square 1 Bank any other “Subsidiaries” (as hereinafter defined) in its respective jurisdiction of formation formation, and due qualification as a foreign organization authorized to do business in any other jurisdiction in which it maintains any offices, issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of prior to the Closing Date;.
(fd) The Corporation shall have caused the issuance and delivery to Purchaser of certificates from (i) the Federal Deposit Insurance Corporation (the “FDIC”) confirming that each Bank’s deposits are currently insured by the FDIC, (ii) the Board of Governors of the Federal Reserve System (the “Federal Reserve”), certifying that Corporation is a registered bank holding company, (iii) the Office of the Comptroller of the Currency (“OCC”) that Equity Bank is a national banking association, and (iv) the Kansas state bank regulatory agency (the “Department”) certifying that Signature Bank is duly authorized as a commercial bank under Kansas law.
(e) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of without limitation the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (FDIC, the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) Department or any state securities regulator (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required to be obtained by the Corporation or the Purchaser for the consummation of the Transactions by the CompanyTransactions, as defined hereinherein (the foregoing are sometimes referred to herein as a “Required Approval” and collectively as “Required Approvals”), shall have been obtained or filed or shall have occurred and (as applicable) and, as to any order or orders, any such orders shall have become final, non-appealable ordersappealable, and there neither Purchaser nor Corporation shall have received written notice from or otherwise been notified by a Governmental Authority that it will not grant a Required Approval. At Purchaser’s sole option, no Required Approval shall (i) impose any condition or requirement that would reasonably be expected to be materially burdensome to the Purchaser (including without limitation any that, in Purchaser’s reasonable judgment, could impose material constraints or restrictions on the Purchaser’s current business or investments), or (ii) impose any restraint or condition on any limited partner of the Purchaser (including a requirement to file any application or notice under the BHC Act, the Change in Bank Control Act or any other federal or state banking law) (the foregoing, if identified by Purchaser, using its reasonable good faith judgment, by written notice to Corporation as “Burdensome Conditions,” are sometimes referred to herein individually as a “Burdensome Condition and collectively as “Burdensome Conditions”). For purposes of this Agreement, the imposition of a Burdensome Condition in connection with a Required Approval shall constitute a denial of such Required Approval and the Required Approval shall be deemed not received for all purposes in this Agreement, including but not limited to Section 6.15(b). The condition set forth in this subsection is sometimes referred to in this Agreement as the “Approval Condition.”
(f) As a condition precedent to Purchaser purchasing the Purchased Shares, Purchaser shall have received, to the extent required by applicable law or regulations, written confirmation from (a) the Federal Reserve of its Non-Control Determination as to Purchaser and (b) the Department of its approval or non-objection for Purchaser to purchase the Purchased Shares; provided, however, that no such regulatory approval or non-objection or Non-Control Determination shall impose a Burdensome Condition and provided, further, that the imposition of one or more Burdensome Conditions in connection with a regulatory approval or Non-Control Determination shall constitute a denial of such regulatory approval or Non-Control Determination and such regulatory approval or Non-Control Determination shall be deemed not received for all purposes of this Agreement, including but not limited to Section 1.3 hereof.
(g) There shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;. The condition set forth in this subsection is sometimes referred to in this Agreement as the “Prohibition Condition.”
(gh) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, Independent legal counsel to the Company, Corporation reasonably satisfactory to Purchaser (“Corporation Counsel”) shall have furnished to the Purchaser its written opinion, addressed to the Purchasers Purchaser and dated the Closing Date, substantially as set forth in Exhibit C hereto;form and substance acceptable to Purchaser.
(hi) The Company Corporation shall have delivered to the Purchasers a schedule in the form Purchaser, at least five (5) business days prior to Closing, for Purchaser’s review, an updated copy of Schedule 3.1(h3.1(i) attached hereto (the “Capital Schedule”) that identifies certifies, as of the time immediately after the Closing and assuming the sale of the number of each type of Purchased Shares determined by Purchaser as contemplated by this Agreement, the number of shares shares, by class, series and type type, of all authorized, issued and outstanding capital stock, options options, warrants, subordinated debt instruments, trust preferred securities, hybrid debt or capital instruments, any debt or equity instruments convertible into shares of common stock of the Corporation, and other securities of the Company Corporation (in each case stating whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation); the Corporation shall attach to the Capital Schedule complete copies of the instruments defining all rights and all conversion features of each type of security listed on the Capital Schedule other than (i) Class A Common Stock, (ii) Class B Common Stock and (iii) the preferred stock issued to the United States Treasury in January 2009.
(ij) Except as set forth on Schedule 3.1(i), the Corporation shall not, at any time at or before the Closing or as part of the Offering, enter into any agreements with any investor or group of affiliated investors owning and/or committing to purchase any securities of the Corporation (“Other Significant Investor(s)”) containing, rights, obligations and provisions more favorable to the Other Significant Investor(s) than the rights, obligations and provisions set forth herein. The provisions of this Section 3.1(j) are a covenant as well as a condition and shall survive the Closing.
(k) The Corporation shall complete closing on and shall have filed with received the Secretary proceeds in collected funds for, the issuance and sale of State not less than an aggregate of the State $20,000,000 (2,000,000 shares) of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B A Common Stock in the form attached hereto as Exhibit D.Offering, including for this purpose the shares of the Corporation’s Class B Non-Voting Common Stock, par value $0.01 per share (the “Class B Common Stock”) being purchased by other investors in the Offering.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser):
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President Chairman and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained hereinherein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto, the Registration Rights Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be performed, satisfied or complied with by it at or prior to the Closing;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall has not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as defined a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) the ability of the Corporation to consummate the Transactions and perform its obligations hereunder on a timely basis.
(db) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;Corporation.
(ec) The Company Corporation shall have delivered (i) a certificate evidencing the formation good standing, and good standing (ii) a certified copy of all charter documents of record, in both cases (i) and (ii) above for each of the Company Corporation, Bank and Square 1 Bank any other “Subsidiaries” (as hereinafter defined) in its respective jurisdiction of formation formation, and due qualification as a foreign organization authorized to do business in any other jurisdiction in which it maintains any offices, issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of prior to the Closing Date;.
(fd) The Corporation shall have caused the issuance and delivery to Purchaser of certificates from (i) the Federal Deposit Insurance Corporation (the “FDIC”) confirming that each Bank’s deposits are currently insured by the FDIC, (ii) the Board of Governors of the Federal Reserve System (the “Federal Reserve”), certifying that Corporation is a registered bank holding company, (iii) the Office of the Comptroller of the Currency (“OCC”) that Equity Bank is a national banking association, and (iv) the Kansas state bank regulatory agency (the “Department”) certifying that Signature Bank is duly authorized as a commercial bank under Kansas Law.
(e) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection nonobjection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of without limitation the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (FDIC, the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) Department or any state securities regulator (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required to be obtained by the Corporation or the Purchaser for the consummation of the Transactions by the CompanyTransactions, as defined hereinherein (the foregoing are sometimes referred to herein as a “Required Approval” and collectively as “Required Approvals”), shall have been obtained or filed or shall have occurred and (as applicable) and, as to any order or orders, any such orders shall have become final, non-appealable ordersappealable, and there neither Purchaser nor Corporation shall have received written notice from or otherwise been notified by a Governmental Authority that it will not grant a Required Approval. At Purchaser’s sole option, no Required Approval shall (i) impose any condition or requirement that would reasonably be expected to be materially burdensome to the Purchaser (including without limitation any that, in Purchaser’s reasonable judgment, could impose material constraints or restrictions on the Purchaser’s current business or investments), or (ii) impose any restraint or condition on any limited partner of the Purchaser (including a requirement to file any application or notice under the BHC Act, the Change in Bank Control Act or any other federal or state banking law) (the foregoing, if identified by Purchaser, using its reasonable good faith judgment, by written notice to Corporation as “Burdensome Conditions,” are sometimes referred to herein individually as a “Burdensome Condition and collectively as “Burdensome Conditions”). For purposes of this Agreement, the imposition of a Burdensome Condition in connection with a Required Approval shall constitute a denial of such Required Approval and the Required Approval shall be deemed not received for all purposes in this Agreement, including but not limited to Section 6.15(b). The condition set forth in this subsection is sometimes referred to in this Agreement as the “Approval Condition.”
(f) As a condition precedent to Purchaser purchasing the Purchased Shares, Purchaser shall have received, to the extent required by applicable law or regulations, written confirmation from (a) the Federal Reserve of its Non-Control Determination as to Purchaser and the Department of its approval or non-objection for Purchaser to purchase the Purchased Shares; provided, however, that no such regulatory approval or non-objection or Non-Control Determination shall impose a Burdensome Condition and provided, further, that the imposition of one or more Burdensome Conditions in connection with a regulatory approval or Non-Control Determination shall constitute a denial of such regulatory approval or Non-Control Determination and such regulatory approval or Non-Control Determination shall be deemed not received for all purposes of this Agreement, including but not limited to Section 1.3 hereof.
(g) There shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;. The condition set forth in this subsection is sometimes referred to in this Agreement as the “Prohibition Condition.”
(gh) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, Independent legal counsel to the Company, Corporation reasonably satisfactory to Purchaser (“Corporation Counsel”) shall have furnished to the Purchaser its written opinion, addressed to the Purchasers Purchaser and dated the Closing Date, substantially as set forth in Exhibit C hereto;form and substance acceptable to Purchaser.
(hi) The Company Corporation shall have delivered to the Purchasers a schedule in the form Purchaser, at least five (5) business days prior to Closing, for Purchaser’s review, an updated copy of Schedule 3.1(h3.1(i) attached hereto (the “Capital Schedule”) that identifies certifies, as of the time immediately after the Closing and assuming the sale of the number of each type of Purchased Shares determined by Purchaser as contemplated by this Agreement, the number of shares shares, by class, series and type type, of all authorized, issued and outstanding capital stock, options options, warrants, subordinated debt instruments, trust preferred securities, hybrid debt or capital instruments, any debt or equity instruments convertible into shares of common stock of the Corporation, and other securities of the Company Corporation (in each case stating whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation); the Corporation shall attach to the Capital Schedule complete copies of the instruments defining all rights and all conversion features of each type of security listed on the Capital Schedule other than (i) Class A Common Stock, (ii) Class B Common Stock and (iii) the preferred stock issued to the United States Treasury in January 2009.
(ij) Except as set forth on Schedule 3.1(j), the Corporation shall not, at any time at or before the Closing or as part of the Offering, enter into any agreements with any investor or group of affiliated investors owning and/or committing to purchase any securities of the Corporation (“Other Significant Investor(s)”) containing, rights, obligations and provisions more favorable to the Other Significant Investor(s) than the rights, obligations and provisions set forth herein. The provisions of this Section 3.1(j) are a covenant as well as a condition and shall survive the Closing.
(k) The Corporation shall complete closing on and shall have filed with received the Secretary proceeds in collected funds for, the issuance and sale of State not less than an aggregate of the State $20,000,000 (2,000,000 shares) of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B A Common Stock in the form attached hereto as Exhibit D.Offering, including for this purpose the shares of the Corporation’s Class B Non-Voting Common Stock, par value $0.01 per share (the “Class B Common Stock”) being purchased by other investors in the Offering.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company shall Corporation will have furnished to the Purchaser Purchasers a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chairman of the Board, the Chief Executive Officer and President, and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;; and
(ii) Such officers have carefully examined the Financial Statements Exchange Act Reports (as defined in Section 4.1(e4.1(f) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared filed documents comprising part of the Financial StatementsExchange Act Reports), and as of the Closing Date, the Financial Statements Exchange Act Reports do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and;
(iiib) From the date of the Financial Statements September 30, 2009 to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof September 30, 2009 but which become known during such period) ), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g4.1(h) hereof).
(d) The Company shall have delivered a certificate of the Secretary of the Company, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(fc) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications declarations or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) market (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of (including without limitation the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking ability to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel continue to the Company, shall have furnished to the Purchaser its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as set forth in Exhibit C hereto;
(h) The Company shall have delivered to the Purchasers appoint a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company).
(i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.director pursuant to
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company shall Corporation will have furnished to the Purchaser Purchasers a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chairman of the Board, the Chief Executive Officer and President, and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;; and
(ii) Such officers have carefully examined the Financial Statements Exchange Act Reports (as defined in Section 4.1(e4.1(f) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared filed documents comprising part of the Financial StatementsExchange Act Reports), and as of the Closing Date, the Financial Statements Exchange Act Reports do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and;
(iiib) From the date of the Financial Statements March 31, 2008 to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof March 31, 2008 but which become known during such period) ), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g4.1(h) hereof).
(d) The Company shall have delivered a certificate of the Secretary of the Company, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(fc) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications declarations or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) market (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, (including without limitation the ability to continue to appoint a director pursuant to Section 5.3 of the November 26, 2007 Purchase Agreement (as defined in Section 4.1(s) below) shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel to the Company, shall have furnished to the Purchaser its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as set forth in Exhibit C hereto;
(h) The Company shall have delivered to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company).
(id) The Prior to the issuance of the Series A Stock, the Corporation shall have filed with made any filings, including the Secretary Amendment to the Certificate of State Designations, and received any necessary approvals under the General Corporation Law of the State of Delaware a Certificate (the “DGCL”) in order to increase the number of Amendment shares of Series A Stock to permit the sale of the shares of Series A Stock to the Certificate of Designation, Rights Purchasers under this Agreement and Preferences to provide for the Class B Common issuance of shares of Series A Stock in to the form attached hereto as Exhibit D.Purchasers pursuant to this Agreement.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company shall Corporation will have furnished to the Purchaser Purchasers a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chairman of the Board, the Chief Executive Officer and President, and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;; and
(ii) Such officers have carefully examined the Financial Statements Disclosure Materials (as defined in Section 4.1(e4.1(f) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared filed documents comprising part of the Financial StatementsDisclosure Materials), and as of the Closing Date, the Financial Statements Disclosure Materials do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and;
(iiib) From the date of the Financial Statements November 20, 2007 to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof November 20, 2007 but which become known during such period) ), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g4.1(h) hereof).
(dc) The Company shall have delivered a certificate of the Secretary of the CompanyExcept as set forth in Section 2.1 above, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(f) Any any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications declarations or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) market (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, (including without limitation the ability to appoint a director pursuant to Section 5.3 below) shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders.
(d) Except as set forth in Section 2.1 above, the Board of Governors of the Federal Reserve System (the “Federal Reserve”) shall have issued a written determination of non-control under both the Bank Holding Company Act (the “BHC Act”) and the Change in Bank Control Act (the “CIBC Act”) on the Institutional Purchaser’s ownership of up to 9.9% of the Corporation’s Common Stock and Preferred Stock which is convertible into up to an additional 5% of the Corporation’s Common Stock in form and substance satisfactory to the Institutional Purchaser (including without limitation the ability to appoint a director pursuant to Section 5.3 below) (collectively, a “Fed Determination”) and none of the Federal Reserve or any other Governmental Authority shall have imposed or required any changes that are inconsistent with this Agreement and the Transactions that are not acceptable to the Institutional Purchaser in its sole discretion.
(e) The Corporation and each Purchaser shall have entered into that certain Preemptive and Registration Rights Agreement, dated as of the Closing Date, between the Corporation and each Purchaser, in the form of Exhibit C hereto, which provides the Institutional Purchaser with certain pre-emptive rights relating to certain equity securities of the Corporation and provides each of the Institutional Purchaser and the other Purchasers with certain registration rights with respect to the Shares and the shares of Common Stock issuable upon conversion of the Preferred Stock being purchased hereunder (the “Preemptive and Registration Rights Agreement”).
(f) Prior to the issuance of the Preferred Stock, the Corporation shall have made any filings, including the Certificate of Designations, and there shall be no judgment, injunction, order or decree prohibiting received any necessary approvals under the General Corporation Law of the Transactions contemplated hereby, State of Delaware (the “DGCL”) in order to amend its Certificate of Incorporation to provide for the establishment and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking designation of the Preferred Stock on the terms set forth in the Certificate of Designations and the issuance of such shares to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;Institutional Purchaser.
(g) Xxxxxxxxxx Xxxxxxxx Vedder, Price, Xxxxxxx & Xxxxxxxx LLPKammholz, P.C., counsel to the CompanyCorporation, shall have furnished to the Purchaser Purchasers its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as to the effect set forth in Exhibit C A hereto;.
(h) The Company Purchasers other than the Institutional Purchaser, collectively, shall have delivered to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after purchase at the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company with an aggregate purchase price equal to at least Seventy-Five Million Dollars (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company$75,000,000).
(i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company shall Corporation will have furnished to the Purchaser Purchasers a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chairman of the Board, the Chief Executive Officer and President, and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;; and
(ii) Such officers have carefully examined the Financial Statements Disclosure Materials (as defined in Section 4.1(e4.1(f) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared filed documents comprising part of the Financial StatementsDisclosure Materials), and as of the Closing Date, the Financial Statements Disclosure Materials do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and;
(iiib) From the date of the Financial Statements November 20, 2007 to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof November 20, 2007 but which become known during such period) ), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g4.1(h) hereof).
(dc) The Company shall have delivered a certificate of the Secretary of the CompanyExcept as set forth in Section 2.1 above, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(f) Any any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications declarations or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) market (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, (including without limitation the ability to appoint a director pursuant to Section 5.3 below) shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders.
(d) Except as set forth in Section 2.1 above, the Board of Governors of the Federal Reserve System (the “Federal Reserve”) shall have issued a written determination of non-control under both the Bank Holding Company Act (the “BHC Act”) and the Change in Bank Control Act (the “CIBC Act”) on the Institutional Purchaser’s ownership of up to 9.9% of the Corporation’s Common Stock and Preferred Stock which is convertible into up to an additional 5% of the Corporation’s Common Stock in form and substance satisfactory to the Institutional Purchaser (including without limitation the ability to appoint a director pursuant to Section 5.3 below) (collectively, a “Fed Determination”) and none of the Federal Reserve or any other Governmental Authority shall have imposed or required any changes that are inconsistent with this Agreement and the Transactions that are not acceptable to the Institutional Purchaser in its sole discretion.
(e) The Corporation and each Purchaser shall have entered into that certain Preemptive and Registration Rights Agreement, dated as of the Closing Date, between the Corporation and each Purchaser, in the form of Exhibit C hereto, which provides the Institutional Purchaser with certain pre-emptive rights relating to certain equity securities of the Corporation and provides each of the Institutional Purchaser and the other Purchasers with certain registration rights with respect to the Shares and the shares of Common Stock issuable upon conversion of the Preferred Stock being purchased hereunder (the “Preemptive and Registration Rights Agreement”).
(f) Prior to the issuance of the Preferred Stock, the Corporation shall have made any filings, including the Certificate of Designations, and there shall be no judgment, injunction, order or decree prohibiting received any necessary approvals under the General Corporation Law of the Transactions contemplated hereby, State of Delaware (the “DGCL”) in order to amend its Certificate of Incorporation to provide for the establishment and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking designation of the Preferred Stock on the terms set forth in the Certificate of Designations and the issuance of such shares to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;Institutional Purchaser.
(g) Xxxxxxxxxx Xxxxxxxx Vedder, Price, Kxxxxxx & Xxxxxxxx LLPKammholz, P.C., counsel to the CompanyCorporation, shall have furnished to the Purchaser Purchasers its written opinion, addressed to the Purchasers and dated the Closing Date, substantially as to the effect set forth in Exhibit C A hereto;.
(h) The Company Purchasers other than the Institutional Purchaser, collectively, shall have delivered to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after purchase at the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company with an aggregate purchase price equal to at least Seventy-Five Million Dollars (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company$75,000,000).
(i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser):
(a) The Company Certificate of Determination shall have executed and delivered to been accepted on file by the Purchaser, or caused to be executed and delivered to the Purchaser, a copy California Secretary of each of this Agreement State and the Registration Rights AgreementCorporation shall have provided to Purchaser a certified, file-stamped copy thereof;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct in all material respects as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall have not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as defined a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations), or (D) changes in the market price or trading volume of the Common Stock or any other equity, equity-related or debt securities of the Corporation or its Subsidiaries (it being understood and agreed that the exception set forth in this clause (D) does not apply to the underlying reason giving rise to or contributing to any such change); or (ii) the ability of the Corporation to consummate the Transactions and perform its obligations hereunder on a timely basis.
(dc) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the CompanyCorporation;
(ed) The Company Corporation shall have delivered (i) a certificate evidencing the formation good standing, and good standing (ii) to the extent possible, with Corporation’s exercise of diligent efforts, a certified copy of all charter documents of record, in both cases (i) and (ii) above for each of the Company Corporation, Bank, the “Trust Subsidiary” (as hereinafter defined), and Square 1 Bank Central Valley Community Insurance Services, LLC in its respective jurisdiction of formation formation, and due qualification as a foreign organization authorized to do business in any other jurisdiction in which it maintains any offices, issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of prior to the Closing Date; to the extent it is not possible, with Corporation’s exercise of diligent efforts, for Corporation to deliver the certified copies of the document referred to in clause (ii) above, such documents shall be certified by the Corporation prior to Closing as true and complete in all respects, and the Corporation shall deliver publicly certified documents as soon as possible following Closing; and (iii) evidence of filing of public record, reasonably acceptable to Purchaser’s legal counsel, of the Certificate of Determination;
(e) To the extent available, when available with the exercise of diligence by the Corporation, the certificates described in Section 5.2(d).
(f) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection nonobjection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of without limitation the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (FDIC, the “FDIC”) Department and the North Carolina Commissioner of Banks (the “Commissioner”) NASDAQ (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required to be obtained by the Corporation for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx Xxxxxx Brand LLP, counsel to the CompanyCorporation, shall have furnished to the Purchaser its written opinion, addressed to the Purchasers Purchaser and dated the Closing Date, substantially as set forth in Exhibit C B hereto;
(h) The Company Corporation shall have delivered to the Purchasers Purchaser, at least five (5) business days prior to Closing, for Purchaser’s review, a schedule in the form of Schedule 3.1(h) attached hereto (the “Capital Schedule”) that identifies certifies, as of the time immediately after the Closing and assuming the sale of the number of each type of Purchased Shares determined by Purchaser as contemplated by this Agreement, the number of shares shares, by class, series and type type, of all authorized, issued and outstanding capital stock, options options, warrants, subordinated debt instruments, hybrid debt or capital instruments, any debt or equity instruments convertible into shares of common stock of the Corporation, and other securities of the Company Corporation (in each case stating whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation); the Corporation shall attach to the Capital Schedule complete copies of the instruments defining all rights and all conversion features of each type of security listed on the Capital Schedule other than (i) Common Stock and (ii) the preferred stock issued to the United States Treasury in January 2009. The Corporation shall not have entered into any agreements with the “Other Investor” (as defined in Section 4.2(m) containing, rights, obligations and provisions more favorable to the Other Investors than the rights, obligations and provisions set forth herein.
(i) The Corporation Common Stock (i) shall be designated for quotation or listed on the Nasdaq Capital Market and (ii) shall not have filed with the Secretary of State been suspended, as of the State Closing Date, by the SEC or the Nasdaq Capital Market from trading on the Nasdaq Capital Market nor shall suspension by the SEC or the Nasdaq Capital Market have been threatened, as of Delaware a Certificate the Closing Date, either (A) in writing by the SEC or the Nasdaq Capital Market or (B) by falling below the minimum listing maintenance requirements of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.Nasdaq Capital Market.
Appears in 1 contract
Samples: Stock Purchase Agreement (Central Valley Community Bancorp)
Conditions to the Purchaser’s Obligations. The obligations of each Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, except to the extent any such representation or warranty expressly speaks as of an earlier date, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Company shall have executed and delivered to the Purchaser, or caused to be executed and delivered to the Purchaser, a copy of each of this Agreement and the Registration Rights Agreement;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company shall Corporation will have furnished to the Purchaser Purchasers a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, representations and warranties and agreements of the Company Corporation in Section 4.1 hereof are shall be true and correct as of the Closing Date Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date; and
(ii) the Company has Corporation shall have complied in all material respects with all its agreements contained herein;; and
(iiiii) Such officers have carefully examined the Financial Statements Disclosure Materials (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared filed documents comprising part of the Financial StatementsDisclosure Materials), and as of the Closing Date, the Financial Statements Disclosure Materials do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and;
(iiib) From the date of the Financial Statements hereof to the Closing Date, there shall not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) the period from the date hereof to the Closing Date), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in Section 4.1(g) hereof).
(d) The Company shall have delivered a certificate of the Secretary of the Company, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the Company;
(e) The Company shall have delivered a certificate evidencing the formation and good standing of each of the Company and Square 1 Bank in its respective jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of the Closing Date;
(fc) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection of, or declarations, notifications declarations or filings with, or expirations of waiting periods imposed by, by any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (the “FDIC”) and the North Carolina Commissioner of Banks (the “Commissioner”) market (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, .
(d) The Corporation shall have executed and there shall be no judgment, injunction, order or decree prohibiting any delivered to such Purchaser each of the Transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions contemplated hereby;Transaction Documents.
(ge) Xxxxxxxxxx Xxxxxxxx Bass, Xxxxx & Xxxxxxxx LLPXxxx PLC, counsel to the CompanyCorporation, shall have furnished to the Purchaser Purchasers its written opinion, substantially in the form of Exhibit B, addressed to the Purchasers and dated the Closing Date, substantially as set forth in Exhibit C hereto;
(h) The Company shall have delivered to the Purchasers a schedule in the form of Schedule 3.1(h) attached hereto that identifies as of the time immediately after the Closing and assuming the sale of Shares as contemplated by this Agreement, the number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the Company).
(i) The Corporation shall have filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pinnacle Financial Partners Inc)
Conditions to the Purchaser’s Obligations. The obligations of each the Purchaser hereunder are subject to the accuracy, as of the date hereof and on the Closing Date, of the representations and warranties of the Company Corporation contained herein, and to the performance by the Company Corporation of its obligations hereunder and to each of the following additional terms and conditions:conditions (or waiver thereof by the Purchaser):
(a) The Company Certificate of Determination shall have executed and delivered to been accepted on file by the Purchaser, or caused to be executed and delivered to the Purchaser, a copy California Secretary of each of this Agreement State and the Registration Rights AgreementCorporation shall have provided to Purchaser a certified, file-stamped copy thereof;
(b) The aggregate gross proceeds from the sale of the Shares of Common Stock in the Participation Offering, including the sale of the Shares pursuant to the terms hereof, shall not be less than $20.5 million.
(c) The Company Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date, executed on behalf of the Company Corporation by each of the President and Chief Executive Officer and the Chief Financial Officer of the CompanyCorporation, stating that:
(i) The representations, warranties and agreements of the Company Corporation in Section 4.1 hereof are true and correct in all material respects as of the Closing Date and the Company Corporation has complied with all its agreements contained herein;
(ii) Such officers have carefully examined the Financial Statements (as defined in Section 4.1(e) hereof) and, in their opinion, as of their respective dates (except to the extent superseded by statements in later-prepared documents comprising part of the Financial StatementsStatements and delivered to Purchaser), and as of the Closing Date, the Financial Statements do not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements; and
(iii) From the date of the Financial Statements hereof to the Closing Date, there shall have not have been any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the date hereof but which become known during such period) that, individually or in the aggregate, has had, or would reasonably be expected to have, a “Material Adverse Effect” (for purposes of this Agreement, “Material Adverse Effect means a material adverse effect on (i) the business, results of operation or financial condition of the Corporation and its Subsidiaries taken as defined a whole; provided, however, that Corporation Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in Section 4.1(ggeneral business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its subsidiaries operate, (B) hereofchanges or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authority (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations), or (D) changes in the market price or trading volume of the Common Stock or any other equity, equity-related or debt securities of the Corporation or its Subsidiaries (it being understood and agreed that the exception set forth in this clause (D) does not apply to the underlying reason giving rise to or contributing to any such change); or (ii) the ability of the Corporation to consummate the Transactions and perform its obligations hereunder on a timely basis.
(dc) The Company Corporation shall have delivered a certificate of the Secretary of the CompanyCorporation, dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of the Company Corporation or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the Registration Rights Agreement and the issuance of the Purchased Shares, (ii) certifying the current versions version of the certificate of incorporationbylaws, as amended, and bylaws of the Company Corporation and (iii) certifying as to the signatures and authority of persons signing this Agreement and related documents on behalf of the CompanyCorporation;
(ed) The Company Corporation shall have delivered (i) a certificate evidencing the formation good standing, and good standing (ii) to the extent possible, with Corporation’s exercise of diligent efforts, a certified copy of all charter documents of record, in both cases (i) and (ii) above for each of the Company Corporation, Bank, the “Trust Subsidiary” (as hereinafter defined), and Square 1 Bank Central Valley Community Insurance Services, LLC in its respective jurisdiction of formation formation, and due qualification as a foreign organization authorized to do business in any other jurisdiction in which it maintains any offices, issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within five (5) business days of prior to the Closing Date; to the extent it is not possible, with Corporation’s exercise of diligent efforts, for Corporation to deliver the certified copies of the document referred to in clause (ii) above, such documents shall be certified by the Corporation prior to Closing as true and complete in all respects, and the Corporation shall deliver publicly certified documents as soon as possible following Closing; and (iii) evidence of filing of public record, reasonably acceptable to Purchaser’s legal counsel, of the Certificate of Determination;
(e) To the extent available, when available with the exercise of diligence by the Corporation, the certificates described in Section 5.2(d).
(f) Any authorizations, consents, commitments, agreements, orders or approvals or confirmation of non-objection nonobjection of, or declarations, notifications or filings with, or expirations of waiting periods imposed by, any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market, including the Board of Governors of without limitation the Federal Reserve (the “Federal Reserve”), the Federal Deposit Insurance Corporation (FDIC, the “FDIC”) Department and the North Carolina Commissioner of Banks (the “Commissioner”) NASDAQ (any such court, agency, authority, exchange or market, including the Federal Reserve, a “Governmental Authority”) required to be obtained by the Corporation for the consummation of the Transactions by the CompanyTransactions, as defined herein, shall have been obtained or filed or shall have occurred and any such orders shall have become final, non-appealable orders, and there shall be no judgment, injunction, order or decree prohibiting any of the Transactions transactions contemplated hereby, and no action, suit or proceeding shall be pending or threatened before or by any court or Governmental Authority seeking to restrain or prohibit, or seeking damages in connection with, the Transactions transactions contemplated hereby;
(g) Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx Dxxxxx Brand LLP, counsel to the CompanyCorporation, shall have furnished to the Purchaser its written opinion, addressed to the Purchasers Purchaser and dated the Closing Date, substantially as set forth in Exhibit C B hereto;
(h) The Company Corporation shall have delivered to the Purchasers Purchaser, at least five (5) business days prior to Closing, for Purchaser’s review, a schedule in the form of Schedule 3.1(h) attached hereto (the “Capital Schedule”) that identifies certifies, as of the time immediately after the Closing and assuming the sale of the number of each type of Purchased Shares determined by Purchaser as contemplated by this Agreement, the number of shares shares, by class, series and type type, of all authorized, issued and outstanding capital stock, options options, warrants, subordinated debt instruments, hybrid debt or capital instruments, any debt or equity instruments convertible into shares of common stock of the Corporation, and other securities of the Company Corporation (in each case stating whether or not then-presently convertible into or exercisable or exchangeable for shares of capital stock of the CompanyCorporation); the Corporation shall attach to the Capital Schedule complete copies of the instruments defining all rights and all conversion features of each type of security listed on the Capital Schedule other than (i) Common Stock and (ii) the preferred stock issued to the United States Treasury in January 2009. The Corporation shall not have entered into any agreements with the “Other Investor” (as defined in Section 4.2(m) containing, rights, obligations and provisions more favorable to the Other Investors than the rights, obligations and provisions set forth herein.
(i) The Corporation Common Stock (i) shall be designated for quotation or listed on the Nasdaq Capital Market and (ii) shall not have filed with the Secretary of State been suspended, as of the State Closing Date, by the SEC or the Nasdaq Capital Market from trading on the Nasdaq Capital Market nor shall suspension by the SEC or the Nasdaq Capital Market have been threatened, as of Delaware a Certificate the Closing Date, either (A) in writing by the SEC or the Nasdaq Capital Market or (B) by falling below the minimum listing maintenance requirements of Amendment to the Certificate of Designation, Rights and Preferences for the Class B Common Stock in the form attached hereto as Exhibit D.Nasdaq Capital Market.
Appears in 1 contract
Samples: Stock Purchase Agreement (Patriot Financial Partners Lp)
