First Closing Conditions. (1) The respective obligations of each Anchor Investor, on the one hand, and the Company, on the other hand, to consummate the First Closing are each subject to the satisfaction or written waiver by the Company and the Anchor Investors of the following conditions prior to the First Closing: (A) No provision of any Law and no judgment, injunction, order or decree shall prohibit the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors or any of their Affiliates from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents; (B) All Governmental Consents required to have been obtained at or prior to the First Closing Date in connection with the execution, delivery or performance of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby (including the transactions to be effected at the Second Closing) shall have been obtained and shall be in full force and effect; (C) The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and (D) The General Stockholder Proposals shall have been approved and adopted and the General Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect. (2) The obligation of each Anchor Investor to purchase the Common Shares to be purchased by it at the First Closing is also subject to the satisfaction or written waiver by such Anchor Investor of the following conditions prior to the First Closing: (A) The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(b) (but only with respect to the last sentence thereof), Section 2.2(c), Section 2.2(f) and Section 2.2(q)(4) shall be true and correct in all respects; (B) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects); (C) Each Anchor Investor shall have received a certificate, dated as of the First Closing Date, signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing Date; (D) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.40, in an aggregate amount of not less than $255,000,000; (E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of (i) the Bank Holding Company Act of 1956, as amended (the “BHC Act”), (ii) the Code of Virginia, or (iii) the cross-guaranty liability provisions of the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning of the BHC Act; (F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended; (G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company Subsidiaries, the Anchor Investors or the transactions contemplated by the Transaction Documents, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor to such a degree that such Anchor Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor in its sole discretion); (H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits); (I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect; (J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000; (K) Either (i) not less than 100% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer and (B) the Series A Stockholder Proposals and the Series B Stockholder Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect. (1) All of the Convertible Preferred Stock issued by the Company shall have been Tier 1 capital at all times while outstanding under applicable Law and Federal Reserve regulations and guidelines, unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2) contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issued; (M) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 per share pursuant to the terms and conditions of the Treasury Letter; (N) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents; (O) The Board of Directors shall have eleven (11) members, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company; (P) Each Anchor Investor shall have received a certificate signed on behalf of the Company by a senior executive of the Company, dated as of the First Closing Date, certifying (a) the resolutions adopted by the Board of Directors or a duly authorized committee thereof approving the transactions contemplated by the Transaction Documents and the issuance of the Common Shares in the Other Private Placements, (b) the current versions of the Articles of Incorporation, as amended, and By-Laws, as amended, of the Company and (c) as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company. (Q) At the First Closing, the Company shall have caused each Anchor Investor to receive, substantially in the forms set forth as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company. (R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and (S) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC or the Nasdaq Stock Market from trading on the Nasdaq Stock Market. (3) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing: (A) The representations and warranties of each Anchor Investor set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor to perform its obligations hereunder; (B) Each Anchor Investor shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects). (C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor Investor signed on behalf of such Anchor Investor by a senior executive officer of such Anchor Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A) and Section 1.2(d)(3)(B) have been satisfied on and as of the First Closing Date.
Appears in 3 contracts
Samples: Investment Agreement (DBD Cayman, Ltd.), Investment Agreement (Anchorage Advisors, LLC), Investment Agreement (Hampton Roads Bankshares Inc)
First Closing Conditions. (1) The respective obligations of each Anchor InvestorPurchaser, on the one hand, and the Company, on the other hand, to consummate the First Closing are each subject to the satisfaction or written waiver by the Company and the Anchor Investors Purchasers of the following conditions prior to the First Closing:
(A) No provision of any Law and no judgment, injunction, order or decree shall prohibit the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors Purchasers or any of their Affiliates from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents;
(B) All Governmental Consents required to have been obtained at or prior to the First Closing Date in connection with the execution, delivery or performance of the Transaction Documents this Agreement and the consummation of the transactions contemplated hereby and thereby (including the transactions to be effected at the Second Closing) shall have been obtained and shall be in full force and effect;
(C) The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and
(DC) The General Stockholder Proposals shall have been approved and adopted and the General Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(2) The obligation of each Anchor Investor Purchaser to purchase the Common Shares to be purchased by it at the First Closing is also subject to the satisfaction or written waiver by such Anchor Investor Purchaser of the following conditions prior to the First Closing:
(A3) The representations and warranties of the Company set forth in Schedule I to this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(bparagraph (b) (but only with respect to the last sentence thereof), Section 2.2(cparagraph (c), Section 2.2(fparagraph (f) and Section 2.2(q)(4paragraph (q)(4) of Schedule I shall be true and correct in all respects;
(BA) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(CB) Each Anchor Investor The Company shall have received a certificatecaused each Purchaser to receive, dated substantially in the form set forth as Exhibit A hereto, opinions of the First Closing DateXxxxxxxx Xxxxxx, signed on behalf of the Company by a senior executive officer certifying counsel to the effect that Company, executed by such counsel and addressed to the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing DatePurchasers;
(DC) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds Escrow Funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.400.43, in an aggregate amount of not less than $255,000,000;
(E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of (i) the Bank Holding Company Act of 1956, as amended (the “BHC Act”), (ii) the Code of Virginia, or (iii) the cross-guaranty liability provisions of the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning of the BHC Act;
(F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended;
(G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company Subsidiaries, the Anchor Investors or the transactions contemplated by the Transaction Documents, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor to such a degree that such Anchor Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor in its sole discretion);
(H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits);
(I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000;
(KD) Either (i) not less than 100% of the aggregate liquidation value (or liquidation preference as the case may be) of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers pursuant to the terms set forth on Schedule II or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer pursuant to the terms set forth on Schedule II and (B) the Series A Stockholder Proposals and the Series B Stockholder Preferred Stock Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.;
(1E) All There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or its Subsidiaries, the Purchasers or the transactions contemplated by this Agreement, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(e)(1)(B) or otherwise, which imposes any restriction or condition which any Purchaser determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the Convertible Preferred Stock issued by transactions contemplated hereby to such Purchaser to such a degree that such Purchaser would not have entered into this Agreement had such
(F) condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the Company shall have been Tier 1 avoidance of doubt, (i) any requirements to maintain capital at all times while outstanding in excess of the amount required to be considered “well capitalized” under generally applicable Law and Federal Reserve regulations and guidelinespublished guidelines , unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2ii) contemporaneously any requirements to disclose the identities of limited partners, shareholders or members of any Purchaser or its Affiliates or investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Purchaser in its sole discretion;
(G) Contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 46,713,372 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issuedStock;
(MH) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 0.43 per share pursuant to the terms and conditions of the Treasury Letter;
(NI) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(OJ) There shall not be in effect, as a result of any Regulatory Agreement, any limitation that would limit the amount of either The Board Bank of Directors shall have eleven (11) membersHampton Roads’ or Shore Bank’s brokered deposits to an amount less than the amount of brokered deposits on the books of The Bank of Hampton Roads or Shore Bank on June 24, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company2010;
(PK) Each Anchor Investor Purchaser shall have received a certificate signed on behalf of the Company by a senior executive Secretary of the Company, in the form attached hereto as Exhibit B (the “Secretary’s Certificate”), dated as of the First Closing Date, certifying (a) 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 other Transaction Documents and the issuance of the Common Shares in the Other Private PlacementsEquity Investment, (b) certifying the current versions of the Articles of Incorporation, as amended, and Byby-Lawslaws, as amended, of the Company and (c) certifying as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company.;
(QL) At Each Purchaser shall have received a certificate, dated as of the First ClosingClosing Date, signed on behalf of the Company shall have caused each Anchor Investor to receive, by a senior executive officer substantially in the forms form of Exhibit C attached hereto certifying to the effect that the conditions set forth in Section 1.2(c)(2)(A) and Section 1.2(c)(2)(B) have been satisfied on and as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company.First Closing Date;
(R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and
(SM) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC Commission or the Nasdaq Stock Market from trading on the Nasdaq Stock Market;
(N) The purchase by the Purchaser of the number of Common Shares specified in the signature block of such Purchaser shall not (i) cause such Purchaser or (O) any of its Affiliates to violate any federal or state banking law or regulation, (ii) require such Purchaser or any of its Affiliates to file a prior notice with the Federal Reserve or its delegee under the CIBC Act or the BHC Act or file a prior notice with the Virginia Bureau of Financial Institutions or obtain the prior approval of any federal or state bank regulator or (iii) cause such Purchaser, together with any other person whose ownership of voting securities of the Company would be aggregated with such Purchaser’s ownership of voting securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Purchaser) would represent more than 9.9% of any class of voting securities of the Company outstanding at such time; and
(P) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect.
(34) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor Purchaser at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of each Anchor Investor Purchaser set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor Purchaser to perform its obligations hereunder;
(B) Each Anchor Investor The Company shall have received from each Purchaser a fully completed and duly executed Accredited Investor Questionnaire, reasonably satisfactory to the Company, and Stock Certificate Questionnaire in the forms attached hereto as Exhibits D-1 and D-2 , respectively; and
(C) Each Purchaser has performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor Purchaser shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects).
(C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor Investor signed on behalf of such Anchor Investor by a senior executive officer of such Anchor Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A) and Section 1.2(d)(3)(B) have been satisfied on and as of the First Closing Date.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Hampton Roads Bankshares Inc), Securities Purchase Agreement (Hampton Roads Bankshares Inc)
First Closing Conditions. (1) The respective obligations of each Anchor InvestorPurchaser, on the one hand, and the Company, on the other hand, to consummate the First Closing are each subject to the satisfaction or written waiver by the Company and the Anchor Investors Purchasers of the following conditions prior to the First Closing:
(A) No provision of any Law and no judgment, injunction, order or decree shall prohibit the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors Purchasers or any of their Affiliates from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents;
(B) All Governmental Consents required to have been obtained at or prior to the First Closing Date in connection with the execution, delivery or performance of the Transaction Documents this Agreement and the consummation of the transactions contemplated hereby and thereby (including the transactions to be effected at the Second Closing) shall have been obtained and shall be in full force and effect;
(C) The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and
(DC) The General Stockholder Proposals shall have been approved and adopted and the General Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(2) The obligation of each Anchor Investor Purchaser to purchase the Common Shares to be purchased by it at the First Closing is also subject to the satisfaction or written waiver by such Anchor Investor Purchaser of the following conditions prior to the First Closing:
(A) The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(b) (but only with respect to the last sentence thereof), Section 2.2(c), Section 2.2(f) and Section 2.2(q)(4) shall be true and correct in all respects;[RESERVED]
(B) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) Each Anchor Investor The Company shall have received a certificatecaused each Purchaser to receive, dated substantially in the form set forth as Exhibit A hereto, opinions of the First Closing DateXxxxxxxx Xxxxxx, signed on behalf of the Company by a senior executive officer certifying counsel to the effect that Company, executed by such counsel and addressed to the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing DatePurchasers;
(D) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds Escrow Funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.400.43, in an aggregate amount of not less than $255,000,000;
(E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of (i) the Bank Holding Company Act of 1956, as amended (the “BHC Act”), (ii) the Code of Virginia, or (iii) the cross-guaranty liability provisions of the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning of the BHC Act;
(F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended;
(G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company Subsidiaries, the Anchor Investors or the transactions contemplated by the Transaction Documents, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor to such a degree that such Anchor Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor in its sole discretion);
(H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits);
(I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000;
(K) Either (i) not less than 100% of the aggregate liquidation value (or liquidation preference as the case may be) of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers pursuant to the terms set forth on Schedule II or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer pursuant to the terms set forth on Schedule II and (B) the Series A Stockholder Proposals and the Series B Stockholder Preferred Stock Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.;
(1F) All There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or its Subsidiaries, the Purchasers or the transactions contemplated by this Agreement, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(e)(1)(B) or otherwise, which imposes any restriction or condition which any Purchaser determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the Convertible Preferred Stock issued by transactions contemplated hereby to such Purchaser to such a degree that such Purchaser would not have entered into this Agreement had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the Company shall have been Tier 1 avoidance of doubt, (i) any requirements to maintain capital at all times while outstanding in excess of the amount required to be considered “well capitalized” under generally applicable Law and Federal Reserve regulations and guidelinespublished guidelines , unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2ii) contemporaneously any requirements to disclose the identities of limited partners, shareholders or members of any Purchaser or its Affiliates or investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Purchaser in its sole discretion;
(G) Contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 46,713,372 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issuedStock;
(MH) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 0.43 per share pursuant to the terms and conditions of the Treasury Letter;
(NI) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(OJ) There shall not be in effect, as a result of any Regulatory Agreement, any limitation that would limit the amount of either The Board Bank of Directors shall have eleven (11) membersHampton Roads’ or Shore Bank’s brokered deposits to an amount less than the amount of brokered deposits on the books of The Bank of Hampton Roads or Shore Bank on June 24, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company2010;
(PK) Each Anchor Investor Purchaser shall have received a certificate signed on behalf of the Company by a senior executive Secretary of the Company, in the form attached hereto as Exhibit B (the “Secretary’s Certificate”), dated as of the First Closing Date, certifying (a) 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 other Transaction Documents and the issuance of the Common Shares in the Other Private PlacementsEquity Investment, (b) certifying the current versions of the Articles of Incorporation, as amended, and Byby-Lawslaws, as amended, of the Company and (c) certifying as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company.;
(QL) At Each Purchaser shall have received a certificate, dated as of the First ClosingClosing Date, signed on behalf of the Company shall have caused each Anchor Investor to receive, by a senior executive officer substantially in the forms form of Exhibit C attached hereto certifying to the effect that the conditions set forth in Section 1.2(c)(2)(A) and Section 1.2(c)(2)(B) have been satisfied on and as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company.First Closing Date;
(R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and
(SM) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC Commission or the Nasdaq Stock Market from trading on the Nasdaq Stock Market;
(N) The purchase by the Purchaser of the number of Common Shares specified in the signature block of such Purchaser shall not (i) cause such Purchaser or any of its Affiliates to violate any federal or state banking law or regulation, (ii) require such Purchaser or any of its Affiliates to file a prior notice with the Federal Reserve or its delegee under the CIBC Act or the BHC Act or file a prior notice with the Virginia Bureau of Financial Institutions or obtain the prior approval of any federal or state bank regulator or (iii) cause such Purchaser, together with any other person whose ownership of voting securities of the Company would be aggregated with such Purchaser’s ownership of voting securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Purchaser) would represent more than 9.9% of any class of voting securities of the Company outstanding at such time; and
(O) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect.
(3) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor Purchaser at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of each Anchor Investor Purchaser set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor Purchaser to perform its obligations hereunder;
(B) Each Anchor Investor The Company shall have received from each Purchaser a fully completed and duly executed Accredited Investor Questionnaire, reasonably satisfactory to the Company, and Stock Certificate Questionnaire in the forms attached hereto as Exhibits D-1 and D-2 , respectively; and
(C) Each Purchaser has performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor Purchaser shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects).
(C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor Investor signed on behalf of such Anchor Investor by a senior executive officer of such Anchor Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A) and Section 1.2(d)(3)(B) have been satisfied on and as of the First Closing Date.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Hampton Roads Bankshares Inc), Securities Purchase Agreement (Hampton Roads Bankshares Inc)
First Closing Conditions. (1) The respective obligations of each Anchor InvestorPurchaser, on the one hand, and the Company, on the other hand, to consummate the First Closing are each subject to the satisfaction or written waiver by the Company and the Anchor Investors Purchasers of the following conditions prior to the First Closing:
(A) No provision of any Law and no judgment, injunction, order or decree shall prohibit the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors Purchasers or any of their Affiliates from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents;
(B) All Governmental Consents required to have been obtained at or prior to the First Closing Date in connection with the execution, delivery or performance of the Transaction Documents this Agreement and the consummation of the transactions contemplated hereby and thereby (including the transactions to be effected at the Second Closing) shall have been obtained and shall be in full force and effect;
(C) The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and
(DC) The General Stockholder Proposals shall have been approved and adopted and the General Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(2) The obligation of each Anchor Investor Purchaser to purchase the Common Shares to be purchased by it at the First Closing is also subject to the satisfaction or written waiver by such Anchor Investor Purchaser of the following conditions prior to the First Closing:
(A) The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(b) (but only with respect to the last sentence thereof), Section 2.2(c), Section 2.2(f) and Section 2.2(q)(4) shall be true and correct in all respects;[RESERVED]
(B) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) Each Anchor Investor The Company shall have received a certificatecaused each Purchaser to receive, dated substantially in the form set forth as Exhibit A hereto, opinions of the First Closing DateXxxxxxxx Xxxxxx, signed on behalf of the Company by a senior executive officer certifying counsel to the effect that Company, executed by such counsel and addressed to the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing DatePurchasers;
(D) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds Escrow Funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.40, in an aggregate amount of not less than $255,000,000;
(E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of Either (i) not less than 100% of the Bank Holding Company Act aggregate liquidation value (or liquidation preference as the case may be) of 1956, as amended (the “BHC Act”), outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers pursuant to the terms set forth on Schedule II or (ii) (A) not less than 51% of the Code aggregate liquidation preference of Virginia, or the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer pursuant to the terms set forth on Schedule II and (iiiB) the cross-guaranty liability provisions Preferred Stock Proposals shall have been approved and adopted and the Preferred Articles of Amendment shall have been duly filed with the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning Commonwealth of the BHC ActVirginia State Corporation Commission and shall be in full force and effect;
(F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended;
(G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company its Subsidiaries, the Anchor Investors Purchasers or the transactions contemplated by the Transaction Documentsthis Agreement, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B1.2(e)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor Purchaser determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor Purchaser to such a degree that such Anchor Investor Purchaser would not have entered into the Transaction Documents this Agreement had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor Purchaser or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., advisers shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor Purchaser in its sole discretion);
(H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits);
(I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000;
(K) Either (i) not less than 100% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer and (B) the Series A Stockholder Proposals and the Series B Stockholder Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(1) All of the Convertible Preferred Stock issued by the Company shall have been Tier 1 capital at all times while outstanding under applicable Law and Federal Reserve regulations and guidelines, unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2) contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 55,225,550 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issued;
(MH) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 per share pursuant to the terms and conditions of the Treasury Letter;
(NI) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(O) The Board of Directors shall have eleven (11) members, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company;
(PJ) Each Anchor Investor Purchaser shall have received a certificate signed on behalf of the Company by a senior executive Secretary of the Company, in the form attached hereto as Exhibit B (the “Secretary’s Certificate”), dated as of the First Closing Date, certifying (a) 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 other Transaction Documents and the issuance of the Common Shares in the Other Private PlacementsEquity Investment, (b) certifying the current versions of the Articles of Incorporation, as amended, and Byby-Lawslaws, as amended, of the Company and (c) certifying as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company.;
(QK) At Each Purchaser shall have received a certificate, dated as of the First ClosingClosing Date, signed on behalf of the Company shall have caused each Anchor Investor to receive, by a senior executive officer substantially in the forms form of Exhibit C attached hereto certifying to the effect that the conditions set forth in Section 1.2(c)(2)(A) and Section 1.2(c)(2)(B) have been satisfied on and as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company.First Closing Date;
(R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and
(SL) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC Commission or the Nasdaq Stock Market from trading on the Nasdaq Stock Market;
(M) The purchase by the Purchaser of the number of Common Shares specified in the signature block of such Purchaser shall not (i) cause such Purchaser or any of its Affiliates to violate any federal or state banking law or regulation, (ii) require such Purchaser or any of its Affiliates to file a prior notice with the Federal Reserve or its delegee under the CIBC Act or the BHC Act or file a prior notice with the Virginia Bureau of Financial Institutions or obtain the prior approval of any federal or state bank regulator or (iii) cause such Purchaser, together with any other person whose ownership of voting securities of the Company would be aggregated with such Purchaser’s ownership of voting securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Purchaser) would represent more than 9.9% of any class of voting securities of the Company outstanding at such time; and
(N) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect.
(3) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor Purchaser at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of each Anchor Investor Purchaser set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor Purchaser to perform its obligations hereunder;
(B) Each Anchor Investor The Company shall have received from each Purchaser a fully completed and duly executed Accredited Investor Questionnaire, reasonably satisfactory to the Company, and Stock Certificate Questionnaire in the forms attached hereto as Exhibits D-1 and D-2, respectively; and
(C) Each Purchaser has performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor Purchaser shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects).
(C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor Investor signed on behalf of such Anchor Investor by a senior executive officer of such Anchor Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A) and Section 1.2(d)(3)(B) have been satisfied on and as of the First Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hampton Roads Bankshares Inc)
First Closing Conditions. (1) The respective obligations of each Anchor InvestorPurchaser, on the one hand, and the Company, on the other hand, to consummate the First Closing are each subject to the satisfaction or written waiver by the Company and the Anchor Investors Purchasers of the following conditions prior to the First Closing:
(A) No provision of any Law and no judgment, injunction, order or decree shall prohibit the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors Purchasers or any of their Affiliates from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents;
(B) All Governmental Consents required to have been obtained at or prior to the First Closing Date in connection with the execution, delivery or performance of the Transaction Documents this Agreement and the consummation of the transactions contemplated hereby and thereby (including the transactions to be effected at the Second Closing) shall have been obtained and shall be in full force and effect;
(C) The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and
(DC) The General Stockholder Proposals shall have been approved and adopted and the General Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(2) The obligation of each Anchor Investor Purchaser to purchase the Common Shares to be purchased by it at the First Closing is also subject to the satisfaction or written waiver by such Anchor Investor Purchaser of the following conditions prior to the First Closing:
(A) The representations and warranties of the Company set forth in Schedule I to this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(bparagraph (b) (but only with respect to the last sentence thereof), Section 2.2(cparagraph (c), Section 2.2(fparagraph (f) and Section 2.2(q)(4paragraph (q)(4) of Schedule I shall be true and correct in all respects;
(B) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) Each Anchor Investor The Company shall have received a certificatecaused each Purchaser to receive, dated substantially in the form set forth as Exhibit A hereto, opinions of the First Closing DateXxxxxxxx Xxxxxx, signed on behalf of the Company by a senior executive officer certifying counsel to the effect that Company, executed by such counsel and addressed to the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing DatePurchasers;
(D) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds Escrow Funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.40, in an aggregate amount of not less than $255,000,000;
(E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of Either (i) not less than 100% of the Bank Holding Company Act aggregate liquidation value (or liquidation preference as the case may be) of 1956, as amended (the “BHC Act”), outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers pursuant to the terms set forth on Schedule II or (ii) (A) not less than 51% of the Code aggregate liquidation preference of Virginia, or the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer pursuant to the terms set forth on Schedule II and (iiiB) the cross-guaranty liability provisions Preferred Stock Proposals shall have been approved and adopted and the Preferred Articles of Amendment shall have been duly filed with the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning Commonwealth of the BHC ActVirginia State Corporation Commission and shall be in full force and effect;
(F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended;
(G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company its Subsidiaries, the Anchor Investors Purchasers or the transactions contemplated by the Transaction Documentsthis Agreement, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B1.2(e)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor Purchaser determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor Purchaser to such a degree that such Anchor Investor Purchaser would not have entered into the Transaction Documents this Agreement had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor Purchaser or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., advisers shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor Purchaser in its sole discretion);
(H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits);
(I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000;
(K) Either (i) not less than 100% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer and (B) the Series A Stockholder Proposals and the Series B Stockholder Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(1) All of the Convertible Preferred Stock issued by the Company shall have been Tier 1 capital at all times while outstanding under applicable Law and Federal Reserve regulations and guidelines, unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2) contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 55,225,550 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issued;
(MH) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 per share pursuant to the terms and conditions of the Treasury Letter;
(NI) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(O) The Board of Directors shall have eleven (11) members, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company;
(PJ) Each Anchor Investor Purchaser shall have received a certificate signed on behalf of the Company by a senior executive Secretary of the Company, in the form attached hereto as Exhibit B (the “Secretary’s Certificate”), dated as of the First Closing Date, certifying (a) 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 other Transaction Documents and the issuance of the Common Shares in the Other Private PlacementsEquity Investment, (b) certifying the current versions of the Articles of Incorporation, as amended, and Byby-Lawslaws, as amended, of the Company and (c) certifying as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company.;
(QK) At Each Purchaser shall have received a certificate, dated as of the First ClosingClosing Date, signed on behalf of the Company shall have caused each Anchor Investor to receive, by a senior executive officer substantially in the forms form of Exhibit C attached hereto certifying to the effect that the conditions set forth in Section 1.2(c)(2)(A) and Section 1.2(c)(2)(B) have been satisfied on and as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company.First Closing Date;
(R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and
(SL) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC Commission or the Nasdaq Stock Market from trading on the Nasdaq Stock Market;
(M) The purchase by the Purchaser of the number of Common Shares specified in the signature block of such Purchaser shall not (i) cause such Purchaser or any of its Affiliates to violate any federal or state banking law or regulation, (ii) require such Purchaser or any of its Affiliates to file a prior notice with the Federal Reserve or its delegee under the CIBC Act or the BHC Act or file a prior notice with the Virginia Bureau of Financial Institutions or obtain the prior approval of any federal or state bank regulator or (iii) cause such Purchaser, together with any other person whose ownership of voting securities of the Company would be aggregated with such Purchaser’s ownership of voting securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Purchaser) would represent more than 9.9% of any class of voting securities of the Company outstanding at such time; and
(N) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect.
(3) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor Purchaser at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of each Anchor Investor Purchaser set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor Purchaser to perform its obligations hereunder;
(B) Each Anchor Investor The Company shall have received from each Purchaser a fully completed and duly executed Accredited Investor Questionnaire, reasonably satisfactory to the Company, and Stock Certificate Questionnaire in the forms attached hereto as Exhibits D-1 and D-2 , respectively; and
(C) Each Purchaser has performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents this Agreement to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor Purchaser shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects).
(C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor Investor signed on behalf of such Anchor Investor by a senior executive officer of such Anchor Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A) and Section 1.2(d)(3)(B) have been satisfied on and as of the First Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hampton Roads Bankshares Inc)
First Closing Conditions. (1) The respective 7.1 BRiT's obligations of each Anchor Investor, on the one hand, and the Company, on the other hand, to consummate at the First Closing are each are, unless waived by BRiT, subject to the satisfaction or written waiver by the Company and the Anchor Investors fulfillment of the following conditions:
(a) the ebix Warranties shall have been true and correct in all material respects at and as of the date hereof and shall be true in all material respects at and as of the time of the First Closing (except to the extent such warranties refer specifically to an earlier date) with the same force and effect as though made at and as of that time;
(b) the performance of, or compliance with, all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by ebix at or prior to the First ClosingClosing Date and all the approvals and consents necessary to complete the transactions described herein (including any consents of governmental or regulatory authorities) that are required to have been obtained by ebix at or prior to the First Closing Date having been obtained by ebix;
(c) ebix shall have filed a "Notification Form: Listing of Additional Shares" with the Listing Qualifications department at the Nasdaq Stock Market, Inc.;
(d) the delivery by ebix to BRiT of the items referred to in Section 3.2;
(e) all consents, approvals and actions of, filings with and notices to any governmental or regulatory authority necessary to permit the Parties to perform their respective obligations under this Agreement and the other Transaction Agreements with respect to the transaction to be consummated at the First Closing Date shall have been duly obtained, made or given and shall be in full force and effect, and all terminations or expirations of waiting periods imposed by any governmental or regulatory authority necessary for consummation of the transactions contemplated by this Agreement and the other Transaction Agreements at or prior to the First Closing Date shall have occurred;
(f) BRiT shall have received an undertaking from Xxxxx Xxxxx in the form of Exhibit H;
(g) ebix shall have timely filed its Annual Report on Form 10-K for the year ended December 31, 2000 with the SEC in accordance with the rules under the Exchange Act; and
(h) ebix shall have either (i) terminated the Stockholder Rights Agreement, dated March 23, 1998, between ebix and Xxxxx Xxxxxx Shareholder Services, LLC (the "Rights Plan") or (ii) amended the Rights Plan such that BRiT shall not at any time be deemed to be an "Acquiring Person" thereunder.
7.2 ebix's obligations to consummate at the First Closing are, unless waived by ebix, subject to the fulfillment of the following conditions:
(Aa) No provision the BRiT Warranties shall have been true and correct in all material respects at and as of any Law the date hereof and no judgment, injunction, order or decree shall prohibit be true in all material respects at and as of the time of the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors or any of their Affiliates from owning or voting any Common Shares to be purchased pursuant (except to the Transaction Documentsextent such warranties refer specifically to an earlier date) with the same force and effect as though made at and as of that time;
(Bb) All Governmental Consents the performance of, or compliance with, all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by BRiT at or prior to the First Closing Date and all the approvals and consents necessary to complete the transactions described herein (including any consents of governmental or regulatory authorities) have been obtained at or prior to the First Closing Date having been obtained by BRiT;
(c) the delivery by BRiT to ebix of those items referred to in connection Section 3.2; and
(d) all consents, approvals and actions of, filings with and notices to any governmental or regulatory authority necessary to permit the execution, delivery or performance of the Transaction Documents Parties to perform their respective obligations under this Agreement and the consummation of other Transaction Agreements with respect to the transactions contemplated hereby and thereby (including the transactions transaction to be effected consummated at the Second Closing) First Closing Date shall have been obtained duly obtained, made or given and shall be in full force and effect;
(C) The , and all terminations or expirations of waiting period (and periods imposed by any extension thereof) applicable to the governmental or regulatory authority necessary for consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and
(D) The General Stockholder Proposals shall have been approved and adopted this Agreement and the General Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(2) The obligation of each Anchor Investor to purchase the Common Shares to be purchased by it other Transaction Agreements at the First Closing is also subject to the satisfaction or written waiver by such Anchor Investor of the following conditions prior to the First Closing:
(A) The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(b) (but only with respect to the last sentence thereof), Section 2.2(c), Section 2.2(f) and Section 2.2(q)(4) shall be true and correct in all respects;
(B) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) Each Anchor Investor shall have received a certificate, dated as of the First Closing Date, signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing Date;
(D) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.40, in an aggregate amount of not less than $255,000,000;
(E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of (i) the Bank Holding Company Act of 1956, as amended (the “BHC Act”), (ii) the Code of Virginia, or (iii) the cross-guaranty liability provisions of the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning of the BHC Act;
(F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended;
(G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company Subsidiaries, the Anchor Investors or the transactions contemplated by the Transaction Documents, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor to such a degree that such Anchor Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor in its sole discretion);
(H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits);
(I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000;
(K) Either (i) not less than 100% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer and (B) the Series A Stockholder Proposals and the Series B Stockholder Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effectoccurred.
(1) All of the Convertible Preferred Stock issued by the Company shall have been Tier 1 capital at all times while outstanding under applicable Law and Federal Reserve regulations and guidelines, unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2) contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issued;
(M) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 per share pursuant to the terms and conditions of the Treasury Letter;
(N) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(O) The Board of Directors shall have eleven (11) members, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company;
(P) Each Anchor Investor shall have received a certificate signed on behalf of the Company by a senior executive of the Company, dated as of the First Closing Date, certifying (a) the resolutions adopted by the Board of Directors or a duly authorized committee thereof approving the transactions contemplated by the Transaction Documents and the issuance of the Common Shares in the Other Private Placements, (b) the current versions of the Articles of Incorporation, as amended, and By-Laws, as amended, of the Company and (c) as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company.
(Q) At the First Closing, the Company shall have caused each Anchor Investor to receive, substantially in the forms set forth as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company.
(R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and
(S) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC or the Nasdaq Stock Market from trading on the Nasdaq Stock Market.
(3) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of each Anchor Investor set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor to perform its obligations hereunder;
(B) Each Anchor Investor shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects).
(C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor Investor signed on behalf of such Anchor Investor by a senior executive officer of such Anchor Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A) and Section 1.2(d)(3)(B) have been satisfied on and as of the First Closing Date.
Appears in 1 contract
Samples: Share Exchange and Purchase Agreement (Ebix Com Inc)
First Closing Conditions. (1i) The respective obligations of each Anchor Investor, on the one hand, Investor and the Company, on the other hand, Company to consummate the First Closing are each subject to the satisfaction or written waiver by the Company and the Anchor Investors Investor of the following conditions prior to the First Closing:
(A) No provision of any Law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit the First Closing or the Second Closing or shall prohibit or restrict the Anchor Investors Investor or any of their its Affiliates from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents;
(B) All Governmental Consents required to have been obtained at or prior to the First Closing Date in connection with the executionexecution and delivery of this Agreement and the other Transaction Documents, delivery or the performance of by the Transaction Documents parties hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby (including the transactions to be effected at the Second Closing) shall have been obtained and shall be in full force and effect;, including, without limitation, (i) approval by the Office of Thrift Supervision (“OTS”) of the Investor’s application for status as a savings and loan holding company under the Home Owners’ Loan Act (including, without limitation, the business plan submitted therewith and the activities described therein) and (ii) receipt of a written non-objection from the OTS in response to the Investor’s change in control notice it files with the OTS under the Change of Bank Control Act of 1978, as amended (the “CBCA”) in connection with the Investment; and
(C) The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated by the Transaction Documents under the HSR Act shall have expired or been earlier terminated; and
(D) The General Stockholder Investment-Based Shareholder Proposals shall have been approved and adopted adopted, the Reverse Stock Split shall have been completed and the General Articles Certificate of Amendment shall have been duly filed with the Commonwealth Secretary of Virginia State Corporation Commission for the State of Texas and shall be in full force and effect.
(2ii) The obligation of each Anchor the Investor to purchase the Common Shares to be purchased by it at the First Closing and the Investor Warrant is also subject to the satisfaction or written waiver by such Anchor the Investor of the following conditions prior to the First Closing:
(A) The representations and warranties of the Company and the Bank set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 the date of this Agreement and on and as of the First Closing Date as though made on and as of the First Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the representations and warranties of the Company set forth in Section 2.2(b) (but only with respect to the last sentence thereof), Section 2.2(c), Section 2.2(f) and Section 2.2(q)(4) Specified Representations shall be true and correct in all respects);
(B) The Company and the Bank shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by such party on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company and the Bank shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) The Investor shall have received from the Company a certificate evidencing the incorporation and good standing of the Company and each of the Company Subsidiaries as of a date within ten (10) Business Days prior to the First Closing Date;
(D) The Investor shall have received a certificate, dated as of the First Closing Date, signed on behalf of the Company and the Bank by a senior executive officer certifying to the effect that the conditions set forth in Section 1.2(d)(ii)(A) and Section 1.2(d)(ii)(B) have been satisfied on and as of the First Closing Date;
(E) Reserved;
(F) Prior to the First Closing, the Investor shall have completed the TARP Purchase;
(G) There shall not have been any action taken, or, in the Investor’s reasonable discretion, likely to be taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company Subsidiaries, the Investor or the transactions contemplated by the Transaction Documents by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(i)(B) or otherwise, which imposes any restriction or condition which the Investor determines, in the Investor’s reasonable discretion, is materially burdensome or would reduce the benefits of the transactions contemplated hereby to the Investor to such a degree that the Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on the date of this Agreement (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, (1) any increase in the Bank’s required capital or general or specific valuation allowances, (2) any limitation or restriction on the business of the Company or the Bank as it is now being conducted, and (3) any requirement that would impair or delay the Bank’s ability to execute its business plan, shall be deemed a Burdensome Condition;
(H) As measured on a date that is within fourteen (14) days of the First Closing Date, the funding shortfall in the Bank’s Pentegra Defined Benefit Plan for Financial Institutions shall not exceed $3,200,000, as determined by Pentegra based on the valuation methodology utilized in Pentegra’s July 1, 2010 Actuarial Valuation and Report;
(I) As measured as of the last day of the month immediately preceding the First Closing Date, the Bank shall have at least $490,000,000 in Core Deposits;
(J) As measured as of the last day of the month immediately preceding the First Closing Date, the Bank’s general valuation allowance shall be at least $23,000,000;
(K) As measured as of the last day of the month immediately preceding the First Closing Date, Nonperforming Assets of the Bank shall not exceed $104,000,000;
(L) As independently valued in a manner consistent with the Company’s past practices as of the last day of the month immediately preceding the First Closing Date, the unrealized loss (net of unrealized gain) in the Company’s investment portfolio shall not exceed $3,000,000;
(M) As measured as of the last day of the month immediately preceding the First Closing Date, the Bank’s assets classified by the Company, any Company Subsidiary or any Governmental Entity as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans” or words of similar import, shall not exceed $203,000,000 in an aggregate amount;
(N) As measured as of the last day of the month immediately preceding the First Closing Date, Tangible Capital of the Bank shall not be less than $36,000,000;
(O) Since the date of this Agreement, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(P) Reserved;
(Q) At any time after the date of this Agreement, the Company shall not have agreed to enter into or entered into (1) any agreement or transaction in order to raise capital or (2) any agreement or transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(R) Immediately prior to the First Closing, the Board of Directors as well as the board of directors of the Bank (the “Bank Board”) shall have increased the size of the Board of Directors and Bank Board so that each consists of seven (7) seats, and any vacancies resulting from such increase shall remain vacant at the First Closing in order for the Company and the Bank to satisfy their respective obligations in Section 3.5(a) immediately following the First Closing. Any existing member of the Board of Directors and the Bank Board who will not be among the seven (7) members of each of the Board of Directors and Bank Board immediately following the First Closing shall have tendered his or her conditional resignation from the Board of Directors and the Bank Board, as applicable, to be effective upon the First Closing;
(S) The existing directors and officers liability and errors and omissions insurance policies of the Company, the Bank and any other Company Subsidiary (the “Existing D&O Policies”) shall remain in full force and effect as of the date of this Agreement and shall continue in full force and effect until they expire on March 22, 2011. Prior to such date, the Company shall have obtained, and caused the Company Subsidiaries to obtain, from its existing insurance carrier or such other insurance carriers believed to be financially sound and reputable, policies of directors and officers liability and errors and omissions insurance coverage (the “New D&O Policies”), on terms and with limitations and with premiums no less favorable than as set forth on Schedule 1.2(d)(ii)(S);
(T) The Investor shall have received (1) a certificate signed on behalf of the Company by a senior executive officer of the Company, dated as of the First Closing Date, certifying as true, correct and complete (x) the resolutions adopted by the Board of Directors (or a duly authorized committee thereof) and the Company’s shareholders approving the transactions contemplated by the Transaction Documents, (y) the current versions of the Articles of Incorporation, as amended, and bylaws, as amended, of the Company and (z) as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company, and (2) a certificate signed on behalf of the Bank by a senior executive officer of the Bank, dated as of the First Closing Date, certifying as true, correct and complete (x) the resolutions adopted by the Bank Board (or a duly authorized committee thereof) and the Company, as the Bank’s sole shareholder, approving the transactions contemplated by the Transaction Documents, (y) the current version of the Bank Charter, as amended, and the Bank’s bylaws, as amended, and (z) as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Bank;
(U) The Investor shall have received a certificate signed on behalf of the Company by its chief executive officer, chief operating officer and chief financial officer, dated as of the First Closing Date, certifying that the conditions set forth in Sections 1.2(d)(ii)(H), (I), (J), (K), (L), (M), (N) and (O) have been satisfied;
(1) No later than thirty (30) days after the date of this Agreement, the Company shall have caused (x) each of the executives identified on Schedule 1.2(d)(ii)(V)(1)(x) to execute an agreement, in the form attached hereto as Exhibit C-1, whereby each such executive agrees to terminate his or her employment agreement effective immediately prior to the First Closing and release the Company and the Bank from any and all claims and issues arising under such employment agreement and such executive’s employment with the Company and the Bank prior to the date of such release and (y) each of the executives identified on Schedule 1.2(d)(ii)(V)(1)(y) to execute an agreement, in the form attached hereto as Exhibit C-2, whereby each such executive agrees to terminate his or her change in control severance agreement effective immediately prior to the First Closing and release the Company and the Bank from any and all claims and issues arising in connection with executive’s employment with the Company and the Bank prior to the date of such release; and (2) prior to the First Closing, the Company shall take all acts as are necessary or advisable to ensure that neither the transactions contemplated by the Transaction Documents nor the distribution of Common Shares to the Investor’s members pursuant to the terms of the Investor’s operating agreement shall result in or accelerate any payment or severance benefit becoming due to any current or former employee, officer or director of the Company or any Company Subsidiary with such acts including, but not limited to, the amendment of any Benefit Plans or other agreements and arrangements; and
(W) The Common Stock, including the Common Shares issued hereunder, (1) shall be designated for listing and quotation on the NASDAQ Stock Market (“NASDAQ”) and (2) shall not have been suspended, as of the First Closing Date, by the SEC or NASDAQ from trading on the NASDAQ.
(iii) The obligation of the Company hereunder to issue and sell the Common Shares to the Investor at the First Closing and the Investor Warrant is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of the Investor set forth in this Agreement shall be true and correct in all respects on and as of the date of this Agreement and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein), individually or in the aggregate, would not materially adversely affect the ability of the Investor to perform its obligations hereunder;
(B) The Investor shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) Each Anchor Investor shall have received a certificate, dated as of the First Closing Date, signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.2(d)(2)(A) and Section 1.2(d)(2)(B) have been satisfied on and as of the First Closing Date;
(D) The Investors, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement (as defined below) and the Escrow Agent shall have received prior to 5:00 pm (EST) on the Business Day immediately preceding the First Closing Date escrow funds in an amount equal to the anticipated proceeds from the sale of the Common Shares, in each case at a price per share of $0.40, in an aggregate amount of not less than $255,000,000;
(E) Each Anchor Investor shall have received written confirmation, satisfactory in its reasonable good faith judgment, from the Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the Virginia Bureau of Financial Institutions (the “BFI”) to the effect that (or, with respect to clause (iii), each Anchor Investor shall otherwise be reasonably satisfied that) the purchase of the Common Shares and the consummation of the Closings and the transactions contemplated by the Transaction Documents will not result in the Anchor Investor or any of its Affiliates being deemed in control of the Company for purposes of (i) the Bank Holding Company Act of 1956, as amended (the “BHC Act”), (ii) the Code of Virginia, or (iii) the cross-guaranty liability provisions of the Federal Deposit Insurance Act, as amended (the “FDI Act”), or (iv) otherwise being regulated as a bank holding company within the meaning of the BHC Act;
(F) Each Anchor Investor shall have received from the Federal Reserve a written non-objection to the notice filed by such Anchor Investor in connection with its purchase of shares of Common Stock pursuant to the Change of Bank Control Act of 1978, as amended;
(G) There shall not be any action taken, or any Law enacted, entered, enforced or deemed applicable to the Company or the Company Subsidiaries, the Anchor Investors or the transactions contemplated by the Transaction Documents, by any Governmental Entity, whether in connection with the Governmental Consents specified in Section 1.2(d)(1)(B) or otherwise, which imposes any restriction or condition (other than such restrictions as are described in the passivity or anti-association commitments described on Exhibit B hereto) which any Anchor Investor determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of the transactions contemplated hereby to such Anchor Investor to such a degree that such Anchor Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on May 23, 2010 (any such condition or restriction, a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of limited partners, shareholders or members of any Anchor Investor or its Affiliates or its investment advisors, other than Anchorage Capital Partners, L.P. and Anchorage Capital Partners Offshore, Ltd., shall be deemed a Burdensome Condition unless otherwise determined by such Anchor Investor in its sole discretion);
(H) As of the First Closing Date, the Company and the Company Subsidiaries shall have, on a consolidated basis, (a) at least $200,000,000 in (i) cash and due from banks, (ii) deposits in other banks, (iii) overnight funds sold and due from the Federal Reserve Bank and (iv) securities available for sale that have not been pledged and for which a liquid market and price quotations are immediately available through a major securities dealer; and (b) at least $2,200,000,000 in non-brokered deposits (including money market, demand, checking, savings and transactional accounts and certificates of deposits);
(I) Since May 23, 2010, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(J) The Company shall have received (or shall receive concurrently with the First Closing) proceeds from the sale of Common Shares pursuant to the Investment at the First Purchase Price set forth herein and from the Other Private Placements, in each case at a price per share of $0.40, in an aggregate amount of not less than $235,000,000;
(K) Either (i) not less than 100% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offers or (ii) (A) not less than 51% of the aggregate liquidation preference of the outstanding shares of the Series A Preferred Stock and the Series B Preferred Stock shall have been exchanged for Common Shares pursuant to the Exchange Offer and (B) the Series A Stockholder Proposals and the Series B Stockholder Proposals shall have been approved and adopted and the Preferred Stock Articles of Amendment shall have been duly filed with the Commonwealth of Virginia State Corporation Commission and shall be in full force and effect.
(1) All of the Convertible Preferred Stock issued by the Company shall have been Tier 1 capital at all times while outstanding under applicable Law and Federal Reserve regulations and guidelines, unless all conditions to conversion of all shares of Convertible Preferred Stock were satisfied or waived in writing prior to the issuance of such shares and such Convertible Preferred Stock was issued and converted into Common Stock on the same day; and (2) contemporaneously with the First Closing, all of the TARP Preferred Stock shall have been exchanged for or converted into 52,225,550 shares of Common Stock, directly or through an exchange into and conversion of the Convertible Preferred Stock into Common Stock immediately following and on the same day the Convertible Preferred Stock was issued;
(M) The TARP Warrants shall have been amended to reflect the reduced conversion price of $0.40 per share pursuant to the terms and conditions of the Treasury Letter;
(N) At any time after May 23, 2010, the Company shall not have agreed to enter into or entered into (a) any agreement or transaction in order to raise capital or (b) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents;
(O) The Board of Directors shall have eleven (11) members, including two Designated Anchor Investor Directors, one designated by the CapGen Investor and the chief executive officer of the Company;
(P) Each Anchor Investor shall have received a certificate signed on behalf of the Company by a senior executive of the Company, dated as of the First Closing Date, certifying (a) the resolutions adopted by the Board of Directors or a duly authorized committee thereof approving the transactions contemplated by the Transaction Documents and the issuance of the Common Shares in the Other Private Placements, (b) the current versions of the Articles of Incorporation, as amended, and By-Laws, as amended, of the Company and (c) as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company.
(Q) At the First Closing, the Company shall have caused each Anchor Investor to receive, substantially in the forms set forth as Exhibit C hereto, opinions of Xxxxxxxx Xxxxxx, counsel to the Company.
(R) (i) No later than 30 days after May 23, 2010, the Company shall have caused each of the executives identified in the Disclosure Schedules relating to Section 2.2(x)(7)(A), and each member of the Board of Directors, to execute an acknowledgement and a waiver, in the form attached as Exhibit D or Exhibit E hereto, as applicable and (ii) prior to the First Closing, the Company shall amend all Benefit Plans identified in the Disclosure Schedules relating to Section 2.2(x)(7) to clarify that the transactions contemplated by the Transaction Documents shall not result in or accelerate any payment or severance benefit becoming due to any current of former employee, officer or director of the Company or any Company Subsidiary; and
(S) The Common Stock, including the Common Shares issued hereunder, (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC or the Nasdaq Stock Market from trading on the Nasdaq Stock Market.
(3) The obligations of the Company hereunder to issue and sell the Common Shares to each Anchor Investor at the First Closing is subject to the satisfaction or written waiver by the Company of the following conditions prior to the First Closing:
(A) The representations and warranties of each Anchor Investor set forth in this Agreement shall be true and correct in all respects on and as of May 23, 2010 and on and as of the First Closing Date as though made on and as of the First Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such Anchor Investor to perform its obligations hereunder;
(B) Each Anchor Investor shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the First Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, each Anchor Investor shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects).; and
(C) The Company shall have received a certificate, dated as of the First Closing Date, from each Anchor the Investor signed on behalf of such Anchor the Investor by a senior executive officer an authorized agent of such Anchor the Investor certifying to the effect that the conditions set forth in Section 1.2(d)(3)(A1.2(d)(iii)(A) and Section 1.2(d)(3)(B1.2(d)(iii)(B) have been satisfied on and as of the First Closing Datesatisfied.
Appears in 1 contract
Samples: Investment Agreement (First Federal Bancshares of Arkansas Inc)
