The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. (b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company. (c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement. (d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions: (i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”); (ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein; (iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted; (iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000; (v) the SunTrust Settlement shall have been effected; (vi) the DPA shall have become effective; (vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained; (viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
The Closing. (a) The closing of the Preferred Exchange (the “Closing”) will take place at the offices of XxxxManatt, WeissXxxxxx & Xxxxxxxx, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsDecember 31, 2014; provided that the conditions set forth in Section Sections 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) representing the Preferred Shares and the original Old Warrant marked cancelled to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Preferred Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Preferred Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and expired (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Preferred Exchange as contemplated by this Agreement, and (iii) the Investor shall have received a non-control determination with respect to the Company from the Board of Governors of the Federal Reserve System (or the Federal Reserve Bank of San Francisco) and the California Department of Business Oversight, Division of Financial Institutions, and the Investor shall provide written evidence of the same to the Company on or prior to the Closing.
(d) The obligation of the Investor to consummate the Preferred Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Exchange Shares to the Investor; and
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Capital Market (“NASDAQ”), subject to official notice of issuance.
Appears in 2 contracts
Samples: Exchange Agreement (Heritage Oaks Bancorp), Exchange Agreement (Heritage Oaks Bancorp)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day five business days after all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the InvestorInvestor (if applicable)) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) if the Conversion Requirements have not been completed prior to the Closing Date, the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors duly adopted and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina Delaware the Articles Amendment amendment to its certificate of incorporation (the “Charter”) in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and such filing shall have been accepted;
(ivii) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock have completed the Other Preferred Exchange on terms satisfactory to the Lead Investors Investor in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000its sole discretion;
(viii) the SunTrust Settlement Company shall have been effectedcompleted the Equity Offering;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viiiiv) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andand (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(v) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.1(d) have been satisfied;
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Exchange Shares to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C;
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the
Appears in 2 contracts
Samples: Exchange Agreement (Broadway Financial Corp \De\), Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreementsdate hereof; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, will cause the transfer agent for the Common Stock Series B Preferred Shares (as applicable) to register the Exchange New Shares in the name of the Investor and deliver or cause to be delivered reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate book-entry shares representing the Preferred Exchanged Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Company shall have filed with the Maryland Department of Assessments and Taxation (and the Maryland Department of Assessments and Taxation shall have confirmed the effectiveness of) an amendment to the Series B Preferred Stock Articles Supplementary, increasing the number of authorized shares of Series B Preferred Stock to 1,506,000 shares (the “Articles Supplementary Amendment”); and
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the New Shares to the Investor.
(e) The obligation of the Company to consummate the Exchange is also subject to the fulfillment (or waiver by the Company) at or prior to the Closing of each of the following conditions:
(i) (A) the representations and warranties of the Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the issuance of the New Shares will not cause the percentage of shares of Common Shares and Series B Preferred Shares owned by the Investor, taking into account the New Shares, to equal or exceed 33.0% of the issued and outstanding shares of the total of the Common Shares and the Series B Preferred Shares; and
(iii) the Investor shall have delivered in book-entry form the Exchanged Shares to the Company.
Appears in 2 contracts
Samples: Exchange Agreement (Castle Creek Capital Partners VII, LP), Exchange Agreement (Pathfinder Bancorp, Inc.)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of contemporaneous with or immediately following the closing of the transactions contemplated by Primary Investor Transactions, assuming all of the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the Warrant and the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
The Closing. (a) The closing of the Exchange transactions contemplated by this Agreement (the “"Closing”") will shall take place at the offices of XxxxAkin, WeissGump, RifkindStrauss, Xxxxxxx Hauex & Xeld, X.L.P., 1900 Xxxxxxxx LLPXxxxx, 0000 Xxxxxx Xxxxx Xxxer, 711 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 xx xxx Xxxxxxxxthe later of (i) July 1, Xxx Xxxx1998 or (ii) such later date which shall be one business day following the Completion Date (as defined in the Contribution Agreement); provided that, Xxx Xxxxshould the Completion Date fall on or after October 1, 000001998, or remotely via the electronic or other exchange of documents and signature pagesCompany may, as the parties may agree. The Closing shall take place on the day of the closing of at its option, elect to close the transactions contemplated by this Agreement on any date on or after October 1, 1998, with ten (10) days' prior notice to Flextrend, in which case, the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as Closing shall be agreed between deemed to occur on a date specified by the Company and Company. Time shall be of the Investor. The time and date on which the Closing occurs is referred to essence in this Agreement as the “Closing Date”Agreement.
(b) Subject The obligation of each of the parties hereto to effect the transactions contemplated hereby is subject to the fulfillment satisfaction or waiver of the conditions to the Closing in this Section 1.1, at the Closing following conditions: (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of made by the Company set forth other party in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date date hereof (other than representations and warranties that by their terms speak as of another unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), but only if the failure to be true would, after giving effect to any indemnification rights, have a material adverse effect on the value or operation of the Properties and the other dateparty shall have performed its covenants and agreements herein to be performed prior to the Closing, except where the failure to perform such covenants and agreements would not, individually or in the aggregate, have a material adverse effect on the value or operation of any of the Properties or the ability of such other party to consummate the transactions contemplated hereby, and an executive officer of the other party shall have provided a certificate to such effect, dated the date hereof; (ii) andall material consents and filings required in connection with the transactions contemplated hereby shall have been obtained or made; and (iii) the other party shall have made the deliveries required to be made by it pursuant to this Section 5.
Appears in 2 contracts
Samples: Redemption Agreement (Tatham Offshore Inc), Redemption Agreement (Tatham Offshore Inc)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the first business day immediately following the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series A Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting obtained an exception from The NASDAQ Stock Market LLC Listing Rule 5635(b) (Shareholder Approval – Change of its shareholders to vote on Control) and Listing Rule 5635(d) (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”Shareholder Approval – Private Placements), as provided in Listing Rule 5635(f) (B) Financial Viability Exception), in respect of the issuance issuances of shares of Common Stock to securities by the Equity Investors and the Investor Company as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Investment Agreement;
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andand (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Investor shall have received a certificate 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)(ii) have been satisfied;
(iv) the Company shall have duly adopted and filed with the State of Washington the amendment to its articles of incorporation (“Charter”) in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and such filing shall have been accepted;
(v) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C;
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(viii)(A) has been satisfied; “Senior Executive Officers” means the Company's “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations;
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day immediately prior to the completion of the closing Primary Investor Transactions, assuming all of the transactions contemplated by the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the Warrant and the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreementsdate hereof; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, will cause the transfer agent for the Common Stock Series A Preferred Shares (as applicable) to register the Exchange Series A Preferred Shares in the name of the Investor and deliver or cause to be delivered reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Exchanged Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied; and
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Series A Preferred Shares to the Investor.
(e) The obligation of the Company to consummate the Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of the Investor set forth in Article V of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing; and
(ii) the Company shall have received a certificate signed on behalf of the Investor by an executive officer or principal certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied.
Appears in 2 contracts
Samples: Exchange Agreement (Hanover Bancorp, Inc. /NY), Exchange Agreement (Hanover Bancorp, Inc. /NY)
The Closing. (a) The closing of the Non-Voting Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsSeptember 28, 2018; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Voting Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Non-Voting Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Non-Voting Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Non-Voting Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Non-Voting Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Non-Voting Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence of issuance in book-entry form of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance, if required; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Voting Common Stock owned by the Investor, taking into account the Exchange Shares, to exceed 9.9% of the issued and outstanding shares of Voting Common Stock.
(e) The obligation of the Company to consummate the Non-Voting Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects; and
(ii) the Company shall have received a certificate signed on behalf of Investor by an executive officer or managing principal certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied.
Appears in 2 contracts
Samples: Exchange Agreement (CJA Private Equity Restructuring Master Fund I LP), Exchange Agreement (Coastal Financial Corp)
The Closing. (a) The closing of the Exchange (the “Closing”) of the purchase and sale of the Acquired Assets and assumption of the Assumed Liabilities hereunder (collectively, the “Purchase and Assumption”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via LLP on a Business Day not occurring during a Freeze Period that is the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place first such Business Day occurring on the day latest of (i) September 1, 2015, (ii) thirty (30) calendar days following the satisfaction or waiver of the closing condition in Section 7.1(a) and (iii) the Business Day following the satisfaction or waiver of each of the transactions contemplated by the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) Sections 7.1, 7.2 and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger 7.3 (other than those conditions that which by their nature are to be satisfied at the closing Closing, but subject to the satisfaction or waiver of such conditions) in accordance with the terms of this Agreement, or at such other date as the parties hereto jointly designate in writing (the “Closing Date”), it being understood that Purchaser and the Company Entities shall use commercially reasonable efforts to cause the consummation of the Merger) shall have been satisfied on the terms set forth therein;Purchase and Assumption to occur by October 1, 2015.
(iiib) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with At the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements Purchaser will, and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required Entities will, execute and deliver or cause to be obtained under executed and delivered to each other the written agreement entered into by Instrument of Assignment and Assumption in substantially the Company with form set forth in Annex A, and such other instruments as are necessary or appropriate to reflect the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) Purchase and Assumption and the representations and warranties satisfaction or waiver of the Company conditions set forth in Article III VII.
(c) At the Closing, the Purchaser will pay the Estimated Purchase Price by initiating a wire transfer of this Agreement shall be true and correct immediately available funds (in all respects as though made U.S. dollars) on and as of the Closing Date to an account or accounts specified by the Company Entities at least two (other than representations 2) Business Days prior to the Closing Date. The Purchaser and warranties the Company Entities acknowledge that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as nominal ownership of such other date) andaccount or accounts shall not be determinative as to which applicable Company Entities are treated as receiving all or a portion of the Purchase Price for Tax purposes.
Appears in 1 contract
The Closing. (a) The closing of the each Exchange (the each, a “Closing”) , and together, the “Closings”), for the avoidance of doubt, subject to the Shareholder Approvals and Regulatory Approval, will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing First Exchange shall occur one (1) Business Day after the satisfaction or waiver of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section Sections 1.1(c), (d) and (d) shall have been satisfied or waivede), or at such other place, time and date as shall be agreed between the Company and the Investor, and each subsequent Closing shall occur as soon as reasonably practicable following the Investor’s notice to the Company of its desire to enter into a Subsequent Exchange. The time and date on which the each Closing occurs is referred to in this Agreement as the a “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the each Closing in this Section 1.1, at the each Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, will cause the transfer agent for the Common Stock (as applicable) to register the Exchange New Shares in the name of the Investor and deliver or cause to be delivered reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate one or more stock certificates or book-entry shares, as applicable, representing the Preferred Exchanged Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the each Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the each Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of such Exchange (including the Exchange Regulatory Approval) shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the such Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement, (iii) the issuance of the New Shares will not cause the percentage of shares of Common Stock owned by the Investor, taking into account the New Shares, to equal or exceed 24.9% of the issued and outstanding shares of Common Stock or otherwise cause the Investor to own more than 33.3% of the total equity of the Company (as defined by Regulation Y of the Board of Governors of the Federal Reserve System) and (iv) the Shareholder Approvals shall have been obtained, the Articles Amendment has been filed with the Virginia State Corporation Commission, and a certificate of amendment has been issued with respect thereto.
(d) The obligation of the Investor to consummate the each Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the each Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of each Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to each Closing;
(ii) the Company shall have filed with the Virginia State Corporation Commission (and the Virginia State Corporation Commission shall have confirmed the effectiveness of) the Preferred Stock Articles of Amendment, which Preferred Stock Articles of Amendment shall remain in full force and effect without any amendments or modifications thereto (except as consented to in writing by the Investor and for which any Required Approvals (if any) have been obtained);
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the New Shares to the Investor.
(e) The obligation of the Company to consummate each Exchange is also subject to the fulfillment (or waiver by the Company) at or prior to each Closing of each of the following conditions:
(i) (A) the representations and warranties of the Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of each Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to each Closing; and
(ii) the Investor shall have delivered one or more stock certificates or book-entry shares representing the Exchanged Shares to the Company.
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxx & Xxxxxxxx Bird LLP, 0000 000 X Xxxxxx xx xxx XxxxxxxxXX, Xxx XxxxXxxxxxxxxx, Xxx Xxxx, XX 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the same day of as the closing of date on which the transactions contemplated by the Investment AgreementsSeries C Conversion becomes effective; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the CDCI Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting obtained the necessary approval of its shareholders to vote on the Company’s stockholders (Athe “Stockholder Approval”) authorizing (i) an amendment to the Company’s Articles certificate of Incorporation incorporation (the “Articles AmendmentCertificate of Incorporation”) reflecting an increase in increasing the amount authorized Common Stock to a number at least sufficient to support the issuance of authorized shares the Exchange Shares and the issuance of Common Stock sufficient to issue all shares upon conversion of Common the Series C Preferred Stock to be issued to and Series D Preferred Stock issuable only upon the Equity Investors receipt of the Stockholder Approval and to mandatory conversion of the Investor as contemplated by this Agreement Series C Preferred Stock (the “Articles Amendment ProposalCommon Stock Authorization”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (Cii) an amendment to the Company’s Articles Certificate of Incorporation reflecting that would permit the approval Investor to vote the shares of a 100 for 1 reverse stock split Common Stock the Investor will hold following the Closing in excess of 9.9% of the outstanding shares of Common Stock (the “Reverse Stock SplitVoting Authorization”), if such approval is required by (iii) the NASDAQ Listing Rules or as conversion of the Company otherwise deems necessary Series C Preferred Stock, (iv) the issuance and conversion of Series D Preferred Stock, and (v) the exchange of the CDCI Preferred Shares for Exchange Shares (collectively, clauses (i) through (v) shall be the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Stockholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent the Company shall have duly adopted and filed with the State of Delaware an amendment to the Merger Certificate of Incorporation (other than those conditions that by their nature are the “Charter Amendment”), in substantially the form attached hereto as Exhibit B, reflecting the Common Stock Authorization and the Voting Authorization, and the Company shall have delivered to be satisfied at the closing Investor a copy of the Merger) shall have filed Charter Amendment with appropriate evidence from the Secretary of State that the filing has been satisfied on the terms set forth thereinaccepted;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common issued Series C Preferred Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,00055,000,000, and all conditions, if any, to the effectiveness of the Series C Conversion shall have been satisfied or waived;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viiiiv) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Preferred Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsDecember 22, 2016; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Preferred Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Preferred Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Preferred Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Preferred Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Exchange Shares to the Investor;
(iv) if required pursuant to the listing requirements of The NASDAQ Global Select Market (“NASDAQ”), the Exchange Shares shall have been authorized for listing on NASDAQ, subject to official notice of issuance; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Common Stock owned by the Investor, taking into account the Exchange Shares, to equal or exceed 4.9% of the issued and outstanding shares of Common Stock.
(e) The obligation of the Company to consummate the Preferred Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) The representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date); and
(ii) The covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects.
Appears in 1 contract
The Closing. (a) The On the terms and subject to the conditions set forth in this Agreement, the closing of the Exchange (the “Closing”) will take place at the offices of Xxxxlocation specified in Schedule A, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via at the electronic or other exchange of documents time and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions date set forth in Section 1.1(c) and (d) shall have been satisfied Schedule A or waivedas soon as practicable thereafter, or at such other place, time and date as shall be agreed between the Company Bank and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company Bank will deliver the Amended Warrant and the Exchange Shares CDCI Senior Subordinated Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant CPP Senior Subordinated Securities to the CompanyBank.
(c) The respective obligations of each obligation of the Investor and the Company to consummate the Exchange are is also subject to the fulfillment (or waiver by the Company and the Investor, as applicable) at or prior to the Closing of each of the conditions that following conditions:
(i) (A) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (iiB) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company Bank set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Bank shall have performed in all respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Bank shall have delivered to the Investor a certificate signed on behalf of the Bank by a Senior Executive Officer certifying to the effect that the conditions set forth in Section 1.2(c)(ii) have been satisfied, in substantially the form attached hereto as Annex A;
(iv) if applicable, the Bank shall have duly adopted and filed with the Secretary of State of its jurisdiction of organization or other applicable Governmental Entity an amendment to its certificate or articles of incorporation, articles of association, or similar organizational document (“Charter”) and its bylaws as in effect on the Closing Date and the Bank shall have delivered to the Investor a copy of the filed amendment with appropriate evidence from the Secretary of State or other applicable Governmental Entity that the filing has been accepted, or if a filed copy is unavailable, a certificate signed on behalf of the Bank by a Senior Executive Officer certifying to the effect that the filing of the amendment has been accepted;
(v) the Bank shall have delivered to the Investor, a certificate signed on behalf of the Bank by a Senior Executive Officer certifying to the effect that the Charter and bylaws of the Bank delivered to the Investor pursuant to the CPP Securities Purchase Agreement remain true, complete and correct, in substantially the form attached hereto as Annex A; to the extent that the Charter and bylaws of the Bank delivered to the Investor pursuant to the CPP Securities Purchase Agreement are no longer true, correct and complete, prior to the Closing Date, the Bank shall deliver to Investor true, complete and correct certified copies of any amendments or supplements to the Charter or bylaws of the Bank or the documentation necessary to make the Charter or bylaws of the Bank delivered to the Investor true, correct and complete as of the Closing Date;
(vi) (A) the Bank shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Bank or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Bank arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Bank by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(c)(vi)(A) has been satisfied, in substantially the form attached hereto as Annex A;
(vii) the Bank shall have delivered to the Investor, a written waiver from each of the Bank’s Senior Executive Officers and any other employee of the Bank required to have delivered a waiver to Investor pursuant to Section 1.2(d)(v) of the CPP Securities Purchase Agreement (each, a “CPP Waiver”) and, to the extent that any Senior Executive Officer or any other employee of the Bank or its Affiliates that are subject to Section 111 of EESA did not deliver a CPP Waiver, the Bank shall cause each such Senior Executive Officer or other employee to have delivered to the Investor a written waiver in the form attached hereto as Annex D releasing the Investor and the Bank from any claims that such Senior Executive Officer or other employee may otherwise have as a result of the modification of, or the agreement of the Bank hereunder to modify, the terms of any Benefit Plans with respect to its Senior Executive Officers or other employees to eliminate any provisions of such Benefit Plans that would not be in compliance with the requirements of Section 111 of EESA as implemented by the Compensation Regulations;
(viii) the Bank shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the CDCI Senior Subordinated Securities to the Investor or its designee(s);
(ix) the Bank shall have delivered to the Investor written opinions from counsel to the Bank (which may be internal counsel), addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex B;
(x) the Bank and the Bank Subsidiaries shall have taken all necessary action to ensure that the Bank and the Bank Subsidiaries and their executive officers, respectively, are in compliance with (i) all guidelines put forth by the Investor with respect to transparency, reporting and monitoring and (ii) the provisions of EESA and any federal law respecting EESA, including the Employ American Workers Act (Section 1611 of Division A, Title XVI of the American Recovery and Reinvestment Act of 2009), Public Law No. 111-5, effective as of February 17, 2009, and all rules, regulations and guidance issued thereunder;
(xi) the Bank shall have delivered to the Investor a copy of the Disclosure Schedule on or prior to the date of the Letter Agreement (the “Signing Date”) and, to the extent that any information set forth on the Disclosure Schedule needs to be updated or supplemented to make it true, complete and correct as of the Closing Date, (i) the Bank shall have delivered to the Investor an update to the Disclosure Schedule (the “Disclosure Update”), setting forth any information necessary to make the Disclosure Schedule true, correct and complete as of the Closing Date and (ii) the Investor, in its sole discretion, shall have approved the Disclosure Update, provided, however, that the delivery and acceptance of the Disclosure Update shall not limit or affect any rights of or remedies available to the Investor;
(xii) the Bank shall have delivered to the Investor prior to the Signing Date either (i) a true, complete and correct certified copy of the CDFI Certification Application that the Bank submitted to the Community Development Financial Institution Fund (the “Fund”) in connection with its certification as a CDFI along with any updates to the CDFI Certification Application necessary to make it true, complete and correct as of the Signing Date or (ii) to the extent a copy of the CDFI Certification Application that the Bank submitted to the Fund in connection with its certification as a CDFI is not available, a newly completed CDFI Certification Application true, complete and correct as of the Signing Date (the CDFI Certification Application delivered to the Investor pursuant to this Section 1.2(c)(xii), the “CDFI Application”), and, to the extent any information set forth in the CDFI Application is not true, complete and correct as of the Closing Date, the Bank shall have delivered to the Investor an update to the CDFI Application (the “CDFI Application Update”), setting forth any information necessary to make the information set forth in the CDFI Application true, correct and complete as of the Closing Date;and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing consummation of the Exchange Merger shall take place at a closing (the “Closing”) will take place to occur at the offices of XxxxXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, WeissProfessional Corporation, RifkindOne Market Street, Xxxxxxx & Xxxxxxxx LLPSpear Tower, 0000 Xxxxxx xx xxx XxxxxxxxSuite 3300, Xxx XxxxXxxxxxxxx, Xxx XxxxXxxxxxxxxx, 00000, on a date and at a time to be agreed upon by Parent, Merger Sub and the Company, which date shall be no later than the second (2nd) Business Day after the satisfaction or remotely via waiver (to the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day extent permitted hereunder) of the closing last to be satisfied or waived of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger Article VII (other than those conditions that by their nature terms are only capable of being satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder), of such conditions) or at such other location, date and time as Parent, Merger Sub and the Company shall mutually agree upon in writing; provided that, notwithstanding the satisfaction or waiver of all of the conditions set forth in Article VII (other than those conditions that, by their nature, are to be satisfied at the closing Closing, but subject to the satisfaction or written waiver (to the extent permitted hereunder) of those conditions at the Closing), if the Marketing Period has not ended on such date, the Closing shall not be required to occur until the earlier of (a) any Business Day during the Marketing Period specified by Parent on no less than three (3) Business Days’ prior notice to the Company and (b) two (2) Business Days after the final day of the MergerMarketing Period, but subject, in the case of each of clauses (a) shall have been satisfied on and (b), to the terms continued satisfaction or written waiver (where permissible) of the conditions set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements in Article VII (other than those conditions that that, by their nature nature, are to be only capable of being satisfied at the closing Closing, but subject to the satisfaction or written waiver (where permissible) of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with those conditions at the Closing), unless Parent, Merger Sub and the Company shall issue Common Stock to the Lead Investors mutually agree upon another location, date and time in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of writing. The date upon which the Closing Date (other than representations and warranties that by their terms speak shall actually occur pursuant hereto is referred to herein as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andthe “Closing Date”.
Appears in 1 contract
Samples: Merger Agreement (Microsemi Corp)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the first business day immediately following the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series F Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting obtained an exception in writing pursuant to Section 312.05 (Financial Viability Exception) of its shareholders to vote on (A) an amendment to the Company’s Articles New York Stock Exchange Listed Company Manual from the shareholder approval policy set forth in Section 312.03 of Incorporation (the “Articles Amendment”) reflecting an increase New York Stock Exchange Listed Company Manual in respect of the amount issuances by the Company of authorized the Capital Securities, the shares of Common Stock sufficient to issue all shares issuable upon conversion of the Capital Securities (the “Underlying Common Stock to be issued to Shares”), the Equity Investors Amended Warrant and to the Investor Warrant Shares as contemplated by this Agreement (Agreement, and at least ten days shall have passed since the “Articles Amendment Proposal”), (B) Company sent its shareholders the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as letter required by Rule 5635 Section 312.05 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Listed Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Manual;
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Investor shall have received a certificate 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)(ii) have been satisfied;
(iv) the Company shall have duly adopted and filed with the Commonwealth of Puerto Rico a Certificate of Designations, having the effect of an amendment to its articles of incorporation (“Charter”), in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and such filing shall have been accepted;
(v) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C; and
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(viii)(A) has been satisfied; “Senior Executive Officers” means the Company’s “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations.
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “"Closing”") will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the first business day immediately following the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “"Closing Date”".
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series A Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “"Governmental Entities”") required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company holders of the Common Stock shall have called a meeting duly approved, by proxy vote or otherwise, the issuance of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient issuable upon conversion of the Capital Securities (the "Underlying Common Shares") to issue all the Investor upon the conversion of the Capital Securities to shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Stock;
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III (x) Sections 3.3, 3.4, 3.5 and 3.7 of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date and (y) Sections 3.1, 3.2, 3.6, 3.8 and 3.9 of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Investor shall have received a certificate 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)(ii) have been satisfied;
(iv) the Company shall have duly adopted and filed with the State of Michigan the amendment to its articles of incorporation ("Charter") in substantially the form attached hereto as Annex B (the "New Certificate of Designations") and such filing shall have been accepted;
(v) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annex C; and
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111
Appears in 1 contract
The Closing. (a) The closing of 12.1 Subject to the Exchange (the “Closing”) will terms and conditions hereof, Closing shall take place at the offices Time of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take at a place on the day of the closing of the transactions contemplated to be mutually determined by the Investment Agreements; provided that Corporation and the conditions set forth in Section 1.1(c) Agent.
12.2 Any and (d) shall have been satisfied or waived, or at such other place, time and date as all Closings shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by following conditions for the Company and the Investor, as applicable) prior to the Closing sole benefit of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.Agent:
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investora) at or prior to the Closing Time of each Closing, the Corporation shall have obtained all requisite regulatory approvals in the Qualifying Jurisdictions required to be obtained by the Corporation in respect of the following conditionsOffering on terms mutually acceptable to the Corporation and the Agent;
(b) at or prior to the Time of Closing, the Corporation shall have fully complied with all relevant statutory and regulatory requirements in the Qualifying Jurisdictions required to be complied with prior to the Time of Closing (including, without limitation, the regulatory requirements of the Exchange) in connection with the Offering;
(c) at or prior to the Time of Closing, the Corporation shall have obtained conditional approval for the listing on the Exchange of its Common Shares including, without limitation, (i) the Units Shares, (ii) the Agent's Commission Shares, (iii) the Agent’s Unit Shares and (iv) the Warrant Shares;
(d) at or prior to the Time of Closing, the Corporation shall have taken all necessary corporate action to authorize and approve:
(i) this Agreement;
(ii) the Agent’s Option and Agent’s Option Agreement;
(iii) the Warrant Indenture;
(iv) the issuance of the Agent's Commission Units and underlying securities;
(v) the issuance of the Agent’s Option Units and underlying securities; and
(vi) the issuance of the Offered Securities and Additional Securities;
(e) at or prior to the Time of Closing, a "comfort letter" from the Corporation’s auditors, dated the Closing Date, addressed to the Agent and reasonably satisfactory in form and substance to the Agent and the Agent’s counsel, to the effect that they have carried out certain procedures performed for the purposes of comparing certain specified financial information and percentages appearing in the Prospectus with indicated amounts in the financial statements or accounting records of the Corporation or any other applicable entity or business, as applicable, and have found such information and percentages to be in agreement, which comfort letters shall be based on the Corporation’s auditors and other applicable auditors’ review having a cut-off date of not more than two Business Days prior to the date of the Prospectus.
(f) at the Time of Closing, the Corporation shall deliver to the Agent an officer’s certificate in form and substance satisfactory to counsel for the Agent acting reasonably, signed by the Chief Executive and Chief Financial Officer of the Corporation (or such other officers as is acceptable to the Agent), dated the Closing Date, addressed to the Agent to the effect that, after a reasonable investigation that:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase representations and warranties contained in the amount of authorized shares of Common Stock sufficient to issue Article 7 hereof are true and correct in all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement material respects at and as required by Rule 5635 at the Time of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Closing;
(ii) the Corporation has complied with all covenants and satisfied all the terms and conditions precedent contained herein in all material respects on its part to be performed or satisfied at or prior to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth thereinClosing Date;
(iii) such officers have carefully examined the Company shall have filed with Offering Documents and since the State respective dates as of North Carolina which information is given in the Articles Amendment Offering Documents, except as set forth in and such filing shall have been acceptedcontemplated by the Offering Documents, the Corporation has not incurred any liabilities or obligations, direct or contingent, which, when considered in respect of their business, are material;
(iv) all conditions precedent since the date of this Agreement, there has been no Material Adverse Change and the Corporation has not entered into any transaction of a nature material to the transactions contemplated by the Investment Agreements it; and
(other than those conditions that by their nature are v) there has occurred no event required to be satisfied set forth in an amended prospectus which has not been so set forth.
(g) at the closing Time of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company Agent shall issue Common Stock receive favourable legal opinions, addressed to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock Agent, from counsel to the Additional Equity Investors Corporation, subject to the usual qualifications and assumptions, relating to the following:
(i) the Corporation has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation and has all requisite corporate authority and capacity to carry on its business as now conducted and as disclosed in the Private Placement for aggregate gross proceeds Prospectus,
(ii) the Corporation has the corporate power and capacity to create, issue and deliver the Offered Securities, Additional Securities, the Agent’s Option and the Agent’s Commission Units (if any issued) contemplated hereunder;
(iii) confirming the authorized and issued capital of the Corporation;
(iv) that the forms of the definitive certificates representing the Offered Securities have been approved and adopted by the directors of the Corporation and conform to the Company requirements of not less than $310,000,000applicable law;
(v) conditional acceptance by the SunTrust Settlement shall have been effected;
Exchange of the listing of the Common Shares, including without limitation, (vii) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andUnit Shares,
Appears in 1 contract
Samples: Agency Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, date hereof or at such other place, time and date as shall be agreed between the Company and the Investor; provided, however, that the conditions set forth in Sections 1.1(c), (d) and (e) shall have been satisfied or waived. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, will cause the transfer agent for the Voting Common Stock Shares (as applicable) to register the Exchange New Shares in the name of the Investor and deliver or cause to be delivered reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate book-entry shares representing the Preferred Exchanged Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing; and
(ii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the New Shares to the Investor.
(e) The obligation of the Company to consummate the Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of the Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects; and
(ii) the Investor shall have delivered book-entry shares representing the Exchanged Shares to Company.
Appears in 1 contract
Samples: Exchange Agreement (Castle Creek Capital Partners VI, LP)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxVxxxxx Price P.C., Weiss200 Xxxxx XxXxxxx Xxxxxx, RifkindXxxxx 0000, Xxxxxxx & Xxxxxxx, Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place CST on the first business day immediately following the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series T Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company Securities and Exchange Commission (“SEC”) shall have called a meeting of its shareholders to vote on (A) an amendment to declared effective the Company’s Articles of Incorporation Form S-4 Registration Statement (Registration No. 333-160985) pertaining to the exchange (the “Articles AmendmentSeries A Exchange”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Series A Noncumulative Redeemable Convertible Perpetual Preferred Stock (the “Reverse Stock SplitSeries A Preferred Stock”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each ) for shares of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting Company’s common stock, par value $0.01 per share (the “Requisite Shareholder VoteCommon Stock”);
(ii) all conditions precedent the holders of the Common Stock shall have duly approved, by proxy vote or otherwise, (A) the increase of the number of authorized shares of Common Stock from 64 million to 4 billion and (B) the issuance of the shares of Common Stock issuable upon conversion of the Capital Securities (the “Underlying Common Shares”) to the Merger (other than those conditions that by their nature are to be satisfied at Investor upon the closing conversion of the Merger) shall have been satisfied on the terms set forth thereinCapital Securities to shares of Common Stock;
(iii) the Company holders of the Series A Preferred Stock shall have filed duly approved, by proxy vote or otherwise, the issuance of the Capital Securities with rights senior to the State of North Carolina the Articles Amendment and such filing shall have been acceptedSeries A Preferred Stock;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III (x) Sections 3.3, 3.4, 3.5 and 3.7 of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date and (y) Sections 3.1, 3.2, 3.6, 3.8 and 3.9 of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(v) the Investor shall have received a certificate 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)(iv) have been satisfied;
(vi) the Company shall have duly adopted and filed with the Secretary of State of Delaware the amendment to its certificate of incorporation (“Charter”) in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and such filing shall have been accepted;
(vii) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(viii) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(ix) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annex C; and
(x) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place New York time, on the business day after the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company Trust will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated), cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series C Shares and the original Old Warrant to the CompanyTrust, (iii) the Trust will use the Series C Shares, together with the proceeds of the issuance and sale by the Trust to the Company of $1,000,000 aggregate liquidation amount of Common Securities to purchase $936,000,000 aggregate principal amount of the Debentures and (iv) the Company will deliver to the Trust Debentures having an aggregate principal amount of $936,000,000.
(c) The respective obligations of each of the Investor Investor, the Trust and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company Company, the Trust and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III (x) Sections 3.4 and 3.6 of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date and (y) Sections 3.1, 3.2, 3.3, 3.5, 3.7 and 3.8 of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate 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)(i) have been satisfied;
(iii) the Company shall have delivered to the Investor the Amended and Restated Declaration of Trust and Trust Agreement, in substantially the form attached hereto as Annex A (the “Trust Agreement”), among the Company, the Bank of New York Mellon, a New York banking corporation, as property trustee (the “Bank”), BNY Mellon Trust of Delaware, a Delaware corporation, as Delaware trustee, and Xxxxx Xxxxxxxx, an individual, and Xxxxxxx Xxxxxxx, an individual, as administrative trustees, and the several Holders (as defined in the Trust Agreement), the Guarantee Agreement, in substantially the form attached hereto as Annex B (the “Guarantee Agreement”), between the Company and the Bank, as guarantee trustee, and the First Supplemental Indenture, in substantially the form attached hereto as Annex C (the “First Supplemental Indenture”), between the Company and the Bank, as trustee, which amends and supplements the Indenture in substantially the form attached hereto as Annex C (the “Base Indenture”), between the Company and the Bank; the Base Indenture and the First Supplemental Indenture are together referred to herein as the “Indenture”; the Trust Agreement, the Guarantee Agreement and the Indenture are collectively referred to herein as the “Governing Agreements”;
(iv) the Trust shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(v) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annexes X-0, X-0 and D-3; and
(vi) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers shall have duly consented in writing to such changes), as may be necessary, during the
Appears in 1 contract
Samples: Exchange Agreement (Popular Inc)
The Closing. (a) The On the terms and subject to the conditions set forth in this Agreement, the closing of the Exchange (the “Closing”) will take place at the offices of Xxxxlocation specified in Schedule A, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via at the electronic or other exchange of documents time and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions date set forth in Section 1.1(c) and (d) shall have been satisfied Schedule A or waivedas soon as practicable thereafter, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange CDCI Preferred Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the CPP Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each obligation of the Investor and the Company to consummate the Exchange are is also subject to the fulfillment (or waiver by the Company and the Investor, as applicable) at or prior to the Closing of each of the conditions that following conditions:
(i) (A) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (iiB) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Company shall have delivered to the Investor a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the conditions set forth in Section 1.2(c)(ii) have been satisfied, in substantially the form attached hereto as Annex A;
(iv) the Company shall have duly adopted and filed with the Secretary of State of its jurisdiction of organization or other applicable Governmental Entity an amendment to its certificate or articles of incorporation, articles of association, or similar organizational document (“Charter”) in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and the Company shall have delivered to the Investor a copy of the filed New Certificate of Designations with appropriate evidence from the Secretary of State or other applicable Governmental Entity that the filing has been accepted, or if a filed copy is unavailable, a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the filing of the New Certificate of Designation has been accepted, in substantially the form attached hereto as Annex A;
(v) the Company shall have delivered to the Investor, a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the Charter and bylaws of the Company delivered to the Investor pursuant to the CPP Securities Purchase Agreement remain true, complete and correct, in substantially the form attached hereto as Annex A; to the extent that the Charter and bylaws of the Company delivered to the Investor pursuant to the CPP Securities Purchase Agreement are no longer true, correct and complete, prior to the Closing Date, the Company shall deliver to Investor true, complete and correct certified copies of any amendments or supplements to the Charter or bylaws of the Company or the documentation necessary to make the Charter or bylaws of the Company delivered to the Investor true, correct and complete as of the Closing Date;
(vi) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(c)(vi)(A) has been satisfied, in substantially the form attached hereto as Annex A;
(vii) the Company shall have delivered to the Investor, a written waiver from each of the Company’s Senior Executive Officers and any other employee of the Company required to have delivered a waiver to Investor pursuant to Section 1.2(d)(v) of the CPP Securities Purchase Agreement (each, a “CPP Waiver”) and, to the extent that any Senior Executive Officer or any other employee of the Company or its Affiliates that are subject to Section 111 of EESA did not deliver a CPP Waiver, the Company shall cause each such Senior Executive Officer or other employee to have delivered to the Investor a written waiver in the form attached hereto as Annex D releasing the Investor and the Company from any claims that such Senior Executive Officer or other employee may otherwise have as a result of the modification of, or the agreement of the Company hereunder to modify, the terms of any Benefit Plans with respect to its Senior Executive Officers or other employees to eliminate any provisions of such Benefit Plans that would not be in compliance with the requirements of Section 111 of EESA as implemented by the Compensation Regulations;
(viii) the Company shall have delivered to the Investor a written opinion from counsel to the Company (which may be internal counsel), addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C;
(ix) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence of shares in book-entry form, evidencing the CDCI Preferred Shares to the Investor or its designee(s);
(x) the Company and the Company Subsidiaries shall have taken all necessary action to ensure that the Company and the Company Subsidiaries and their executive officers, respectively, are in compliance with (i) all guidelines put forth by the Investor with respect to transparency, reporting and monitoring and (ii) the provisions of EESA and any federal law respecting EESA, including the Employ American Workers Act (Section 1611 of Division A, Title XVI of the American Recovery and Reinvestment Act of 2009), Public Law No. 111-5, effective as of February 17, 2009, and all rules, regulations and guidance issued thereunder;
(xi) the Company shall have delivered to the Investor, a copy of the Disclosure Schedule on or prior to the date of the Letter Agreement (the “Signing Date”) and, to the extent that any information set forth on the Disclosure Schedule needs to be updated or supplemented to make it true, complete and correct as of the Closing Date, (i) the Company shall have delivered to the Investor an update to the Disclosure Schedule (the “Disclosure Update”), setting forth any information necessary to make the Disclosure Schedule true, correct and complete as of the Closing Date and (ii) the Investor, in its sole discretion, shall have approved the Disclosure Update, provided, however, that the delivery and acceptance of the Disclosure Update shall not limit or affect any rights of or remedies available to the Investor;
(xii) the Company shall have delivered to the Investor prior to the Signing Date either (i) a true, complete and correct certified copy of each CDFI Certification Application that each Certified Entity submitted to the Community Development Financial Institution Fund (the “Fund”) in connection with its certification as a CDFI along with any updates to the CDFI Certification Application necessary to make it true, complete and correct as of the Signing Date or (ii), to the extent a copy of the CDFI Certification Application that any Certified Entity submitted to the Fund in connection with its certification as a CDFI is not available, a newly completed CDFI Certification Application with respect to such Certified Entity true, complete and correct as of the Signing Date (the CDFI Certification Application delivered to the Investor pursuant to this Section 1.2(c)(xii), the “CDFI Application”), and, to the extent any information set forth in the CDFI Application is not true, complete and correct as of the Closing Date, the Company shall have delivered to the Investor an update to the CDFI Application (the “CDFI Application Update”), setting forth any information necessary to make the information set forth in the CDFI Application true, correct and complete as of the Closing Date; and
(xiii) CPP/CDCI Securities. The Company shall have paid to Investor [Insert for cumulative Preferred Shares: all accrued and unpaid dividends or interest then due on the CPP Preferred Stock.] [
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing Subject to Section 2.4(b) and subject also to the satisfaction or waiver of each of the Exchange conditions precedent to the Closing set forth in Article IV, the initial purchase and sale of Notes in the aggregate principal amount specified in the Company's initial Request for an Advance, if any, up to the Maximum Aggregate Advances shall take place at a closing (the “"Closing”") will take place at the offices of XxxxBenesch, WeissFriedlander, RifkindCoplxx & Xronoff, 2300 XX Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx000 Xxxxxx Xxxxxx, Xxx XxxxXxxxxxxxx, Xxxx 00000, xx the date hereof ("Closing Date"), or remotely via the electronic or at such other exchange of documents and signature pages, as place agreed upon by the parties may agree. hereto.
(b) The Closing shall take place is conditioned on the day of the closing simultaneous or prior closings of the transactions contemplated by the Investment Agreements; provided that Share Purchase Agreement and the Loan Documents and the satisfaction or waiver of all other conditions to Closing set forth in Section 1.1(c) and (d) shall have been satisfied or waivedArticle IV of this Agreement. As a result, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in is subject to change. The Company has provided or promptly shall provide each Purchaser which is a party to this Agreement with written notice of any anticipated initial Advance hereunder to be made on the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the CompanyClosing Date.
(c) The respective obligations of Once each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver Purchasers is notified by the Company personally (if in attendance at the Closing) or by telephone that each and the Investorevery condition to Closing has been or, as applicable) prior to the Closing simultaneously with such Purchaser's payment hereunder, will be, either satisfied or waived, each Purchaser shall then cause payment of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation principal amount of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable lawNotes being purchased on such date, if any, to be made to the Company by wire transfer of immediately available funds. The Company shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation furnished to the Purchasers the account information at the time the Company notifies the Purchasers of the Exchange as contemplated by this Agreementdate and time of the Closing.
(d) The obligation of the Investor Purchasers to consummate the Exchange is also make any Advance hereunder shall be subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each satisfaction of the following conditions:
conditions that at the date of making such Advance, and after giving effect thereto: (ia) no Event of Default or event which with the Company passage of time or giving of notice, or both, would constitute an Event of Default, shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to occurred and be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), then continuing and (Cb) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” each representation and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms warranty set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment in Section 3 hereof is true and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated correct as if then made. The acceptance by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement proceeds of any Advance shall have been effected;
(vi) be deemed to constitute as of the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into date of acceptance a representation and warranty by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company that all conditions to make such Advance set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andhave been satisfied.
Appears in 1 contract
Samples: Subordinated Note Purchase Agreement (Waterlink Inc)
The Closing. (a) The closing consummation of the Exchange purchase and sale of the Shares and the Warrants (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic shall be effected by facsimile or other electronic exchange of documents documentation, and signature pages, as the parties may agree. The Closing shall take place held on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and date hereof (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
), at the offices of Xxxxx Xxxx LLP, legal counsel to Privet Fund, LP (“Privet”), at One Atlantic Center, Fourteenth Floor, 0000 Xxxx Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx 00000-0000. (b) Subject Form of Payment. On the Closing Date, each Purchaser shall pay the Company the Purchase Price for the Shares and the Warrants to be issued and sold to such Purchaser, by 1 wire transfer of immediately available funds in accordance with the Company’s written wire instructions previously provided to the fulfillment Purchasers, and the Company shall deliver to each Purchaser the original certificate or waiver certificates representing the Shares and the Warrants, duly executed on behalf of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(ssuch Purchaser. (c) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration Conditions to the Investor) and (ii) Purchaser’s Obligation to Purchase on the Investor will deliver Closing Date. Each Purchaser’s obligation to purchase the certificate representing the Preferred Shares and the original Old Warrant to Warrants at the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are Closing shall be subject to the fulfillment (satisfaction, on or waiver by the Company and the Investor, as applicable) prior to before the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmentalDate, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
, provided that these conditions are for the Purchaser’s sole benefit and may be waived by such Purchaser at any time in its sole discretion: (i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true true, correct and correct in all respects as though made on and complete as of the Closing Date (other than except for representations and warranties that by their terms speak as of another a specific date, which representations and warranties shall be true true, correct and correct in all respects complete as of such other date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing; (ii) no temporary restraining order, preliminary or permanent injunction or other order or decree, and no other legal restraint or prohibition, shall exist which questions the validity of this Agreement or the right of the Company or any Purchaser, as the case may be, to enter into this Agreement or prevents or could reasonably be expected to prevent the consummation of the transactions contemplated by this Agreement, or any litigation or court or administrative proceeding have been commenced or threatened with respect to the foregoing; (iii) the Company shall have amended each of (w) the $700,000 Amended Convertible Stock-Payable Promissory Note, dated as of March 28, 2012, by the Company in favor of SOAdesk, LLC, a Delaware limited liability company (“SOAdesk”), as amended (“SOAdesk Note 1”), (x) the $700,000 Short Term Convertible Promissory Note, dated as of January 15, 2010, by the Company in favor of SOAdesk, as amended (“SOAdesk Note 2”), (y) the $25,000 Amended Promissory Note, dated as of March 31, 2013, by the Company in favor of Xxxxxx X. Xxxxxxxx, and (z) the 336,154.31 Amended Promissory Note, dated March 10, 2014, by the Company in favor of Xxxxxxx Xxxxx to:
(1) extend the maturity date for each note to June 30, 2017, and
(2) adjust the conversion provision of the SOAdesk Note 1 and SOAdesk Note 2 to permit conversion only into common stock at the price of $0.15 per share;
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement
The Closing. (a) The closing of the Preferred Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsSeptember 12, 2016; provided provided, however, that the conditions set forth in Section Sections 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Preferred Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Preferred Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Preferred Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement, and (iii) the Investor shall have received a non-control determination with respect to the Company from the Board of Governors of the Federal Reserve System (or the Federal Reserve Bank of San Francisco) and the California Department of Business Oversight, Division of Financial Institutions, and the Investor shall provide written evidence of the same to the Company on or prior to the Closing.
(d) The obligation of the Investor to consummate the Preferred Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Common Stock owned by the Investor, taking into account the Exchange Shares, to exceed 13.3% of the issued and outstanding shares of Common Stock.
(e) The obligation of the Company to consummate the Preferred Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) The representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date); and
(ii) The covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects.
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsOctober 6, 2017; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock Transfer Agent to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver instruct the certificate representing Transfer Agent to exchange the Preferred Shares and Class B Common Stock for the original Old Warrant to the CompanyExchange Shares.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and or the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence of issuance in book-entry form of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance, if required; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Class A Common Stock owned by the Investor, taking into account the Exchange Shares, to exceed 9.95% of the issued and outstanding shares of Class A Common Stock.
(e) The obligation of the Company to consummate the Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects; and
(ii) the Company shall have received a certificate signed on behalf of Investor by an executive officer or managing principal certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied.
Appears in 1 contract
The Closing. (a) The closing Subject to the satisfaction or waiver of the Exchange conditions for the Closing set forth in this Section 2.02, the Closing (the “Closing”) will of the purchase and sale of the Initial Notes hereunder shall take place at the offices of XxxxSkadden, WeissArps, RifkindSlate, Xxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxx 0000, Xxxx Xxxx, Xxx XxxxXX 00000 at 1:00 p.m. Eastern time on October 26, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived2022, or at such other place, time and or date as shall may be mutually agreed between upon in writing by the Company and the Investor. The time and Purchasers (the date on which the Closing occurs is referred to in this Agreement as actually occurs, the “Closing Date”).
(b) Subject To effect the purchase and sale of Initial Notes, upon the terms and subject to the fulfillment or waiver of the conditions to the Closing set forth in this Section 1.1Agreement, at the Closing Closing:
(i) the Company will and the Trustee shall deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name applicable portion of the Investor Notes against payment in full by or its designee(s) (or if shares on behalf of Common Stock are uncertificated, cause such Purchaser of the transfer agent applicable Purchase Price for the Common Stock to register the Exchange Shares in the name applicable portion of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and Initial Notes;
(ii) each Purchaser shall cause a wire transfer to be made in same day funds to an account of the Investor will deliver Company designated in writing by the certificate representing the Preferred Shares and the original Old Warrant Company to the CompanyPurchasers in an amount equal to the Purchase Price for the applicable Initial Notes; and
(iii) each Purchaser shall have caused to be delivered to the Company a duly completed and executed version of the appropriate IRS Form W-8 or IRS W-9, as applicable.
(c) The respective obligations of each of the Investor and the Company and each Purchaser to consummate the Exchange Closing are subject to the fulfillment (satisfaction or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that following condition:
(i) any approvals or authorizations of all United States the purchase and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation sale of the Exchange Notes shall have been obtained not be prohibited by law or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required enjoined by United States and other applicable law, if any, shall have expired, and (ii) no provision any governmental authority of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreementcompetent jurisdiction.
(d) The obligation obligations of the Investor each Purchaser to consummate the Exchange is also Closing are subject to the fulfillment (satisfaction or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement Sections 3.01(a), 3.01(c) and (e) shall be true and correct in all material respects on and as though made of the Closing Date; (B) the representations and warranties of the Company set forth in (x) Section 3.01(b), (y) the last sentence of Section 3.01(g)(i) and (z) Section 3.01(h) shall be true and correct on and as of the Closing Date and (C) the representations and warranties of the Company set forth in Section 3.01, other than as described in the foregoing clauses (A) and (B), shall be true and correct on and as of the Closing Date (other than without giving effect to materiality, Material Adverse Effect, or similar phrases in the representations and warranties), except where the failure of such representations and warranties referenced in this clause (C) to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect;
(ii) the Company shall have performed and complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it on or prior to the Closing;
(iii) each Purchaser shall have received a certificate, dated the Closing Date, duly executed by an executive officer of the Company on behalf of the Company, certifying that the conditions specified in Sections 2.02(d)(i) and 2.02(d)(ii) have been satisfied;
(iv) the Company and the Trustee shall have executed the applicable Notes and delivered a copy to each Purchaser, and the originals of such Notes to the Custodian (as defined in the Indenture);
(v) the Company and the Trustee shall have executed the Indenture, and copies of the Indenture shall have been delivered to each Purchaser;
(vi) the Company shall have provided the applicable listing of additional shares notification to Nasdaq, and received notification from Nasdaq that the listing of additional shares review process has been completed, and Nasdaq shall not have made any objection (not subsequently withdrawn) that the consummation of the Transactions would violate Nasdaq listing rules applicable to the Company;
(vii) the Company Common Stock shall not have been delisted from the Nasdaq nor shall the Company have received notice of the potential delisting of the Company Common Stock from the Nasdaq;
(viii) the expense reimbursement contemplated by their terms speak Section 6.06 shall have been satisfied (which shall be substantially simultaneous with the Closing if not earlier paid in full); and
(ix) the Purchasers purchasing an aggregate of at least 95% of the Initial Notes to be purchased pursuant to this Agreement shall have performed and complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it on or prior to the Closing.
(e) The obligations of the Company to sell the Initial Notes to each Purchaser are subject to the satisfaction or waiver of the following conditions as of another date, which the Closing:
(i) the representations and warranties of each Purchaser set forth in Section 3.02 shall be true and correct in all material respects on and as of such other datethe Closing Date;
(ii) each Purchaser shall have performed and complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it on or prior to the Closing Date; and
(iii) the Company shall have received a certificate, dated the Closing Date, duly executed by an authorized person of each Purchaser, certifying that the conditions specified in Sections 2.02(e)(i) and 2.02(e)(ii) have been satisfied.
Appears in 1 contract
Samples: Investment Agreement (View, Inc.)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of contemporaneous with or immediately following the closing of the transactions contemplated by Primary Investor Transactions, assuming all of the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the Warrant and the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Primary Investor Transactions shall have been completed and shall have resulted in a minimum aggregate amount of not less than the Primary Investor Consideration in gross cash proceeds to the Company;
(iii) each of the Common Stock SPAs shall be in full force and effect;
(iv) the conditions to closing contained in each of the Common Stock SPAs (other than the condition relating to the Closing hereunder) shall have been satisfied (or waived by the Investor) and the Secondary Investor Consideration shall have been deposited by the Secondary Investors in the amounts set forth in their respective Common Stock SPA (such deposits to be irrevocable except in the case of termination of this Agreement as provided in Section 6.1) with an escrow agent acceptable to the Investor pursuant to an escrow agreement acceptable to the Investor, and all conditions to the release of such amounts from escrow shall have been satisfied or waived;
(v) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in this Section 1.1(d) have been satisfied;
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Exchange Shares to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex A; and
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employees of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on immediately preceding the day completion of the closing Primary Investor Transactions, assuming all of the transactions contemplated by the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate certificates representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the day of on which the closing of Company shall close the transactions contemplated by the Investment AgreementsAgreement (as defined below); provided that all of the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series B Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting approval of its shareholders the NASDAQ Stock Market to vote on (A) an amendment to issue the Capital Securities without approval of the Company’s Articles of Incorporation (the “Articles Amendment”shareholders in reliance on Rule 5635(f) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Stock Market Listing Rules (previously received by the “Share Issuance Proposal”), Company in connection with the transactions contemplated hereby shall remain in full force and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split effect as of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Closing;
(ii) all conditions precedent the Company shall have closed the transactions contemplated by the Investment Agreement, dated as of April 29, 2010 (the “Investment Agreement”), by and among the Company, Pacific Capital Bank, National Association (the “Bank”) and SB Acquisition Company LLC, a Delaware limited liability company (“Ford”), pursuant to which, subject to the Merger terms and conditions set forth therein (other than those as such terms and conditions that by their nature are may be waived or amended, subject to be satisfied Section 5.12 hereof), the Company shall have received an equity recapitalization investment of $500 million and the Company shall have issued to Ford 225,000,000 shares of Common Stock at the closing a purchase price of $0.20 per share and 455,000 shares of the Merger) shall have been satisfied on the terms set forth thereinCompany’s Series C Convertible Participating Voting Preferred Stock at a purchase price of $1,000 per share;
(iii) the Company shall have filed with the State completed a cash tender offer for $50,000,000 in aggregate principal amount of North Carolina the Articles Amendment its Subordinated Debenture due 2014, and at least $18,000,000 in aggregate principal amount of its 9.22% Subordinated Bank Notes due 2011, in each case at a purchase price of $650.00 per $1,000 principal amount of such filing shall have been acceptedsecurities;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(v) the Investor shall have received a certificate 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)(iv) have been satisfied;
(vi) the Company shall have duly adopted and filed with the State of California a Certificate of Determination, having the effect of an amendment to its articles of incorporation (“Charter”), in substantially the form attached hereto as Annex B (the “New Certificate of Determination”) and such filing shall have been accepted;
(vii) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(viii) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(ix) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C; and
(x) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(x)(A) has been satisfied; “Senior Executive Officers” means the Company's “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations.
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on immediately preceding the day completion of the closing Primary Investor Transactions, assuming all of the transactions contemplated by the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the Warrant and the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Non-Voting Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsFebruary 24, 2017; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Voting Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Non-Voting Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Non-Voting Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Non-Voting Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Non-Voting Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.. 1 30136630
(d) The obligation of the Investor to consummate the Non-Voting Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence of issuance in book-entry form of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance, if required; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Voting Common Stock owned by the Investor, taking into account the Exchange Shares, to exceed 4.9% of the issued and outstanding shares of Voting Common Stock.
(e) The obligation of the Company to consummate the Non-Voting Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects; and
(ii) the Company shall have received a certificate signed on behalf of Investor by an executive officer or managing principal certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied.
Appears in 1 contract
Samples: Exchange Agreement (WashingtonFirst Bankshares, Inc.)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxx & Xxxxxxxx Bird LLP, 0000 000 X Xxxxxx xx xxx XxxxxxxxXX, Xxx XxxxXxxxxxxxxx, Xxx Xxxx, XX 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the same day of as the closing of date on which the transactions contemplated by the Investment AgreementsSeries C Conversion becomes effective; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the CDCI Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting obtained the necessary approval of its shareholders to vote on the Company's stockholders (Athe “Stockholder Approval”) authorizing (i) an amendment to the Company’s Articles 's certificate of Incorporation incorporation (the “Articles AmendmentCertificate of Incorporation”) reflecting an increase in increasing the amount authorized Common Stock to a number at least sufficient to support the issuance of authorized shares the Exchange Shares and the issuance of Common Stock sufficient to issue all shares upon conversion of Common the Series C Preferred Stock to be issued to and Series D Preferred Stock issuable only upon the Equity Investors receipt of the Stockholder Approval and to mandatory conversion of the Investor as contemplated by this Agreement Series C Preferred Stock (the “Articles Amendment ProposalCommon Stock Authorization”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (Cii) an amendment to the Company’s Articles Certificate of Incorporation reflecting that would permit the approval Investor to vote the shares of a 100 for 1 reverse stock split Common Stock the Investor will hold following the Closing in excess of 9.9% of the outstanding shares of Common Stock (the “Reverse Stock SplitVoting Authorization”), if such approval is required by (iii) the NASDAQ Listing Rules or as conversion of the Company otherwise deems necessary Series C Preferred Stock, (iv) the issuance and conversion of Series D Preferred Stock, and (v) the exchange of the CDCI Preferred Shares for Exchange Shares (collectively, clauses (i) through (v) shall be the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Stockholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent the Company shall have duly adopted and filed with the State of Delaware an amendment to the Merger Certificate of Incorporation (other than those conditions that by their nature are the “Charter Amendment”), in substantially the form attached hereto as Exhibit B, reflecting the Common Stock Authorization and the Voting Authorization, and the Company shall have delivered to be satisfied at the closing Investor a copy of the Merger) shall have filed Charter Amendment with appropriate evidence from the Secretary of State that the filing has been satisfied on the terms set forth thereinaccepted;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common issued Series C Preferred Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,00055,000,000, and all conditions, if any, to the effectiveness of the Series C Conversion shall have been satisfied or waived;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viiiiv) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(v) the Investor shall have received a certificate, in substantially the form attached hereto as Annex A, signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the conditions set forth in Section 1.1(d)(iv) have been satisfied;
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Exchange Shares to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex B;
(viii) the Exchange Shares shall have been authorized for listing on the NASDAQ Stock Market, LLC (“NASDAQ”);
(ix) the Company shall have delivered to the Investor prior to the date hereof either (i) a true, complete and correct certified copy of each CDFI Certification Application that each Certified Entity submitted to the Community Development Financial Institution Fund (the “Fund”) in connection with its certification as a CDFI along with any updates to the CDFI Certification Application necessary to make it true, complete and correct as of the date hereof or (ii), to the extent a copy of the CDFI Certification Application that any Certified Entity submitted to the Fund in connection with its certification as a CDFI is not available, a newly completed CDFI Certification Application with respect to such Certified Entity that is true, complete and correct as of the date hereof (the CDFI Certification Application delivered to the Investor pursuant to this Section 1.1(d)(ix), the “CDFI Application”), and, to the extent any information set forth in the CDFI Application is not true, complete and correct as of the Closing Date, the Company shall have delivered to the Investor an update to the CDFI Application (the “CDFI Application Update”), setting forth any information necessary to make the information set forth in the CDFI Application true, correct and complete as of the Closing Date;
(x) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations; (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.1(d)(x)(A) has been satisfied; “Senior Executive Officers” means the Company's “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations; and (C) the Company shall have obtained waivers from all relevant directors, officers and employees of the Company necessary to ensure that the consummation of the transactions contemplated by this Agreement will not accelerate the vesting, payment or distribution of any equity-based awards, deferred cash awards or any nonqualified deferred compensation payable by the Company or any of its Affiliates; and
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting Board of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 Directors of the NASDAQ Listing Rules (Company has effected the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have duly adopted and filed with the State of North Carolina Hawaii the Articles Amendment amendment to its articles of incorporation (“Charter”) reflecting the Reverse Stock Split and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viiiiii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iv) the Company shall have issued Common Stock to the Lead Investors in accordance with the Investment Agreements and shall have issued Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $325,000,000;
(v) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(iii) have been satisfied;
(vi) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(vii) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Exchange Shares to the Investor or its designee(s);
(viii) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex B;
(ix) the Exchange Shares and Warrant Shares (as defined below) shall have been authorized for listing on the New York Stock Exchange (“NYSE”), subject to official notice of issuance
(x) the Company shall have submitted an application to the NYSE to seek the approval of the NYSE for the Company’s reliance on Section 312.05 of the NYSE Listed Company Manual (the “NYSE Exception Application”) in connection with the issuance of the Common Stock to the Investor and the Equity Investors without the prior approval of the Company’s shareholders, and the NYSE Exception Application shall have been approved and in full force and effect; and
(xi) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.1(d)(xi)(A) has been satisfied; “Senior Executive Officers” means the Company’s “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations.
Appears in 1 contract
Samples: Exchange Agreement (Central Pacific Financial Corp)
The Closing.
(a) The closing of the Non-Voting Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsDecember 2, 2016; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Voting Common Stock to register the Exchange Shares in the name of the Investor and deliver or cause to be delivered reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Non-Voting Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Non-Voting Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Non-Voting Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Non-Voting Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Non-Voting Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance, if required; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Voting Common Stock owned by the Investor, taking into account the Exchange Shares, to exceed 9.9% of the issued and outstanding shares of Voting Common Stock.
(e) The obligation of the Company to consummate the Non-Voting Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing; and
(ii) the Company shall have received a certificate signed on behalf of the Investor by an executive officer certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied;
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the first business day immediately following the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series A Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting obtained an exception from The NASDAQ Stock Market LLC Listing Rule 5635(b) (Shareholder Approval – Change of its shareholders to vote on Control) and Listing Rule 5635(d) (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”Shareholder Approval – Private Placements), as provided in Listing Rule 5635(f) (B) Financial Viability Exception), in respect of the issuance issuances of shares of Common Stock to securities by the Equity Investors and the Investor Company as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Investment Agreement;
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andand (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Investor shall have received a certificate 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)(ii) have been satisfied;
(iv) the Company shall have duly adopted and filed with the State of Washington the amendment to its articles of incorporation (“Charter”) in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and such filing shall have been accepted;
(v) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C;
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(viii)(A) has been satisfied; “Senior Executive Officers” means the Company’s “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations;
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxXxxxxxx Xxxxxxxxx Xxxxx & Xxxxxxx, WeissLLC, Rifkind0000 Xxxx Xxxxx Xxxxx, 0000 Xxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place CST on the business day after the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company Trust will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated), cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series A Shares and the original Old Warrant to the CompanyTrust, (iii) the Trust will use the Series A Shares, together with the proceeds of the issuance and sale by the Trust to the Company of $100,000 aggregate liquidation amount of Common Securities to purchase $69,100,000 aggregate principal amount of the Debentures and (iv) the Company will deliver to the Trust Debentures having an aggregate principal amount of $69,100,000.
(c) The respective obligations of each of the Investor Investor, the Trust and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company Company, the Trust and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III (x) Sections 3.4 and 3.6 of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date and (y) Sections 3.1, 3.2, 3.3, 3.5, 3.7 and 3.8 of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate 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)(i) have been satisfied;
(iii) the Investor shall have received an amount equal to all accrued and unpaid dividends on the Series A Shares to, but excluding, the Closing Date in cash to an account designated by the Investor;
(iv) the Company shall have delivered to the Investor the Amended and Restated Declaration of Trust and Trust Agreement, in substantially the form attached hereto as Annex A (the “Trust Agreement”), among the Company, The Bank of New York Mellon Trust Company, N.A., a national banking association, as property trustee (the “Bank”), BNY Mellon Trust of Delaware, a Delaware banking corporation, as Delaware trustee, and Xxxxx X. Xxxxx, an individual, and Xxxxxxx X. Xxxxxxxx, an individual, as administrative trustees, and the several Holders (as defined in the Trust Agreement), the Guarantee Agreement, in substantially the form attached hereto as Annex B (the “Guarantee Agreement”), between the Company and the Bank, as guarantee trustee, and the First Supplemental Indenture, in substantially the form attached hereto as Annex C (the “First Supplemental Indenture”), between the Company and the Bank, as trustee, which amends and supplements the Indenture in substantially the form attached hereto as Annex C (the “Base Indenture”), between the Company and the Bank; the Base Indenture and the First Supplemental Indenture are together referred to herein as the “Indenture”; the Trust Agreement, the Guarantee Agreement and the Indenture are collectively referred to herein as the “Governing Agreements”;
(v) the Trust shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vi) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annexes D-1 and D-2; and
(vii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers shall have duly consented in writing to such changes), as may be necessary, during the period beginning with the Company’s receipt of any “financial assistance” (as such term is defined in the Compensation Regulations), and ending on the last date upon which any obligation of the Company arising from such financial assistance remains outstanding (disregarding any warrants to purchase common stock of the Company that the Investor may be holding) (such period, the “Relevant Period”), in order to comply with Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) and (B) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the condition set forth in Section 1.2(d)(vi)(A) has been satisfied; “Senior Executive Officers “ means the Company’s “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations issued or to be issued thereunder, including the rules set forth in 31 CFR Part 30 or any rules that replace 31 CFR Part 30.
Appears in 1 contract
The Closing. (a) The closing of the Exchange Conversion (the “"Closing”") will take place on the ------- same date that the closing of the Acquisitions takes place (the "Closing Date"), ------------ at the offices of XxxxXxxxxxx Xxxx & Xxxxxxxxx, Weiss, Rifkind, 000 Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx Xxxx, Xxx Xxxx, 00000unless another date, place or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be is agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver writing by the Company and the Investor, as applicable) Buyers. The Company shall give the Xxxxxxx Funds at least three business days prior written notice of the Closing Date and time and place of Closing. The Consideration shall be paid to the Xxxxxxx Funds at Closing by wire transfer of immediately available funds and following delivery to the Company of duly endorsed certificates (along with a conversion notice in the form attached as Exhibit A) evidencing the Series A Shares subject to conversion. At the Closing, upon its receipt of the conditions that (i) any approvals or authorizations of all United States and other governmentalcertificates representing the Series A Shares, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment also deliver to the Company’s Articles Xxxxxxx Funds certificates representing the Common Shares as set forth in Section 1.1. Any and all taxes that may be payable in respect of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the any issuance or delivery of shares of Common Stock on conversion of the Series A Shares shall be paid by the Company. The Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance or delivery of Common Shares in a name other than that of the Series A Shares, and no such issuance or delivery shall be made unless and until the Person (as defined in the Certificate of Designation governing the Series A Shares (the "Certificate ----------- of Designations")) requesting such issuance has paid to the Equity Investors and Company the Investor as contemplated by this Agreement and as required by Rule 5635 amount --------------- of such tax or has established, to the satisfaction of the NASDAQ Listing Rules (Company, that such tax has been paid. At the “Share Issuance Proposal”)Closing, and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals Xxxxxxx Funds shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent deliver to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) Company a release and the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing provide each of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously Xxxxxxx Funds with the Closinga Release, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors each case in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects form attached hereto as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andExhibit B.
Appears in 1 contract
Samples: Preferred Stock Conversion and Stockholders Agreement (Four Media Co)
The Closing. (a) The On the terms and subject to the conditions set forth in this Agreement, the closing of the Exchange (the “Closing”) will take place at the offices of Xxxxlocation specified in Schedule A, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via at the electronic or other exchange of documents time and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions date set forth in Section 1.1(c) and (d) shall have been satisfied Schedule A or waivedas soon as practicable thereafter, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares CDCI Senior Subordinated Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant CPP Senior Subordinated Securities to the Company.
(c) The respective obligations of each obligation of the Investor and the Company to consummate the Exchange are is also subject to the fulfillment (or waiver by the Company and the Investor, as applicable) at or prior to the Closing of each of the conditions that following conditions:
(i) (A) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (iiB) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Company shall have delivered to the Investor a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the conditions set forth in Section 1.2(c)(ii) have been satisfied, in substantially the form attached hereto as Annex A;
(iv) if applicable, the Company shall have duly adopted and filed with the Secretary of State of its jurisdiction of organization or other applicable Governmental Entity an amendment to its certificate or articles of incorporation, articles of association, or similar organizational document (“Charter”) and its bylaws as in effect on the Closing Date and the Company shall have delivered to the Investor a copy of the filed amendment with appropriate evidence from the Secretary of State or other applicable Governmental Entity that the filing has been accepted, or if a filed copy is unavailable, a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the filing of the amendment has been accepted;
(v) the Company shall have delivered to the Investor, a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the Charter and bylaws of the Company delivered to the Investor pursuant to the CPP Securities Purchase Agreement remain true, complete and correct, in substantially the form attached hereto as Annex A; to the extent that the Charter and bylaws of the Company delivered to the Investor pursuant to the CPP Securities Purchase Agreement are no longer true, correct and complete, prior to the Closing Date, the Company shall deliver to Investor true, complete and correct certified copies of any amendments or supplements to the Charter or bylaws of the Company or the documentation necessary to make the Charter or bylaws of the Company delivered to the Investor true, correct and complete as of the Closing Date;
(vi) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(c)(vi)(A) has been satisfied, in substantially the form attached hereto as Annex A;
(vii) the Company shall have delivered to the Investor, a written waiver from each of the Company’s Senior Executive Officers and any other employee of the Company required to have delivered a waiver to Investor pursuant to Section 1.2(d)(v) of the CPP Securities Purchase Agreement (each, a “CPP Waiver”) and, to the extent that any Senior Executive Officer or any other employee of the Company or its Affiliates that are subject to Section 111 of EESA did not deliver a CPP Waiver, the Company shall cause each such Senior Executive Officer or other employee to have delivered to the Investor a written waiver in the form attached hereto as Annex C releasing the Investor and the Company from any claims that such Senior Executive Officer or other employee may otherwise have as a result of the modification of, or the agreement of the Company hereunder to modify, the terms of any Benefit Plans with respect to its Senior Executive Officers or other employees to eliminate any provisions of such Benefit Plans that would not be in compliance with the requirements of Section 111 of EESA as implemented by the Compensation Regulations;
(viii) the Company shall have delivered physical certificated debentures in proper form evidencing the CDCI Senior Subordinated Securities to the Investor or its designee(s) in the form attached hereto as Annex D;
(ix) the Company shall have delivered to the Investor written opinions from counsel (which may be internal counsel) to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annex B;
(x) the Company and the Company Subsidiaries shall have taken all necessary action to ensure that the Company and the Company Subsidiaries and their executive officers, respectively, are in compliance with (i) all guidelines put forth by the Investor with respect to transparency, reporting and monitoring and (ii) the provisions of EESA and any federal law respecting EESA, including the Employ American Workers Act (Section 1611 of Division A, Title XVI of the American Recovery and Reinvestment Act of 2009), Public Law No. 111-5, effective as of February 17, 2009, and all rules, regulations and guidance issued thereunder;
(xi) the Company shall have delivered to the Investor, a copy of the Disclosure Schedule on or prior to the date of the Letter Agreement (the “Signing Date”) and, to the extent that any information set forth on the Disclosure Schedule needs to be updated or supplemented to make it true, complete and correct as of the Closing Date, (i) the Company shall have delivered to the Investor an update to the Disclosure Schedule (the “Disclosure Update”), setting forth any information necessary to make the Disclosure Schedule true, correct and complete as of the Closing Date and (ii) the Investor, in its sole discretion, shall have approved the Disclosure Update, provided, however, that the delivery and acceptance of the Disclosure Update shall not limit or affect any rights of or remedies available to the Investor;
(xii) the Company shall have delivered to the Investor prior to the Signing Date either (i) a true, complete and correct certified copy of each CDFI Certification Application that each Certified Entity submitted to the Community Development Financial Institution Fund (the “Fund”) in connection with its certification as a CDFI along with any updates to the CDFI Certification Application necessary to make it true, complete and correct as of the Signing Date or (ii), to the extent a copy of the CDFI Certification Application that any Certified Entity submitted to the Fund in connection with its certification as a CDFI is not available, a newly completed CDFI Certification Application with respect to such Certified Entity true, complete and correct as of the Signing Date (the CDFI Certification Application delivered to the Investor pursuant to this Section 1.2(c)(xii), the “CDFI Application”), and, to the extent any information set forth in the CDFI Application is not true, complete and correct as of the Closing Date, the Company shall have delivered to the Investor an update to the CDFI Application (the “CDFI Application Update”), setting forth any information necessary to make the information set forth in the CDFI Application true, correct and complete as of the Closing Date and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Wxxxxxxxxx & Xxxxxxxx Txxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxOxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place Xxxx 00000 at 9:00 a.m. EDT on the business day after the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company Trust will deliver (A) the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) and (or if B) 69,600 shares of Common Stock are uncertificated, cause the transfer agent for the Common Series A Preferred Stock to register the Exchange Shares Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and or its designee(s), (ii) the Investor will deliver the certificate representing the 116,000 shares of Series A Preferred Shares and the original Old Warrant Stock to the CompanyTrust, (iii) the Trust will use the Series A Shares, together with the proceeds of the issuance and sale by the Trust to the Company of the Common Securities to purchase $47,835,000 aggregate principal amount of the Debentures and (iv) the Company will deliver to the Trust Debentures having an aggregate principal amount of $47,835,000.
(c) The respective obligations of each of the Investor Investor, the Trust and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company Company, the Trust and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate 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)(i) have been satisfied;
(iii) the Investor shall have received an amount equal to all accrued and unpaid dividends on the Series A Shares to, but excluding, the Closing Date in cash to an account designated by the Investor;
(iv) the Company shall have delivered to the Investor the Amended and Restated Declaration of Trust and Trust Agreement, in substantially the form attached hereto as Annex A (the “Trust Agreement”), among the Company, U.S. Bank Trust National Association, a national banking association, as property trustee (the “Bank”), U.S. Bank Trust National Association, a national banking association, as Delaware trustee, and Mxxxxxx X. Xxxxxx, an individual, Jxxx X. Xxxxxxxx, an individual, and Mxxx X. Xxxxxxxx, an individual, as administrative trustees, and the several Holders (as defined in the Trust Agreement), the Guarantee Agreement, in substantially the form attached hereto as Annex B (the “Guarantee Agreement”), between the Company and the Bank, as guarantee trustee, and the First Supplemental Indenture, in substantially the form attached hereto as Annex C (the “First Supplemental Indenture”), between the Company and the Bank, as trustee, which amends and supplements the Indenture in substantially the form attached hereto as Annex D (the “Base Indenture”), between the Company and the Bank; the Base Indenture and the First Supplemental Indenture are together referred to herein as the “Indenture”; the Trust Agreement, the Guarantee Agreement and the Indenture are collectively referred to herein as the “Governing Agreements”;
(v) the Trust shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vi) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annexes E-1 and E-2;
(vii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(vii)(A) has been satisfied; “Senior Executive Officers” means the Company's “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations; and
Appears in 1 contract
The Closing. (a) The closing of the Preferred Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsSeptember 12, 2016; provided provided, however, that the conditions set forth in Section Sections 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Preferred Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Preferred Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Preferred Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement, and (iii) the Investor shall have received a non-control determination with respect to the Company from the Board of Governors of the Federal Reserve System (or the Federal Reserve Bank of San Francisco) and the California Department of Business Oversight, Division of Financial Institutions, and the Investor shall provide written evidence of the same to the Company on or prior to the Closing.
(d) The obligation of the Investor to consummate the Preferred Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Common Stock owned by the Investor, taking into account the Exchange Shares and the Common Stock owned by Patriot Financial Partners Parallel, L.P., to exceed 12.5% of the issued and outstanding shares of Common Stock.
(e) The obligation of the Company to consummate the Preferred Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) The representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date); and
(ii) The covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects.
Appears in 1 contract
The Closing. (a) The closing Unless this Agreement shall have been terminated pursuant to Article VIII, and subject to satisfaction or waiver of the Exchange conditions set forth in Articles VI and VII, the closing (the “Closing”) will of the transactions contemplated by this Agreement shall take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx, 00000, xx a day that is at least five Business Days following the satisfaction or remotely via the electronic or other exchange waiver of documents and signature pages, as the parties may agree. The Closing shall take place on the day all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cArticles VI and VII hereof (the “Closing Date”), or at such other place and time as may be agreed upon by IR and Buyer Parents. The parties will use reasonable efforts to schedule the Closing Date for the last day of a calendar month. Unless the parties agree otherwise, the Closing will be deemed to have occurred at the close of business local time in each applicable jurisdiction on the Closing Date.
(b) Deferred Items - Government Approvals.
(i) If, on the Closing Date:
(A) (x) (1) any Seller or applicable Buyer has not obtained any required Consent of a Governmental Authority in India, the People’s Republic of China or the Czech Republic or any shareholder approval in India legally required in order to transfer (directly or indirectly) any Sold Shares or any Acquired Assets or (2) the Sellers have not completed the necessary restructuring steps to separate the Sellers’ other Czech or Irish businesses from the businesses that are included in the Business (collectively, the “Restructurings”) and are prevented from transferring (directly or indirectly) any Sold Shares or Acquired Assets of such Czech or Irish Businesses (the Sold Shares and Acquired Assets referred to in clauses (1) and (d2), collectively, the “Deferred Items”), and (y) shall all other conditions precedent to the Closing have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.or
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(sB) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares x) there is in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) effect any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, restraining order or decree of any nature of any Governmental Entity shall prohibit consummation Authority of competent jurisdiction in India, the People’s Republic of China, the Czech Republic or the Republic of Ireland or any Law or Order in India, the People’s Republic of China, the Czech Republic or the Republic of Ireland that (1) restrains or prohibits the transfer to the applicable Buyer of the Exchange as contemplated by this Agreement.
Deferred Items or (d2) The obligation of delays the Investor to consummate the Exchange Restructurings, in each case, that is also subject to the fulfillment not permanent or remains appealable (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance ProposalNon-Final Injunction”), and (Cy) an amendment all other conditions precedent to the Company’s Articles of Incorporation reflecting Closing have been satisfied or waived. such Deferred Items shall be withheld from transfer on the approval of a 100 for 1 reverse stock split of Closing Date without any reduction in the Common Stock Initial Purchase Price (except as contemplated below). From and after the “Reverse Stock Split”)Closing, if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal Sellers and the Stock Split ProposalBuyers shall continue to use commercially reasonable efforts to obtain all such Consents relating to the Deferred Items or the transfer thereof, complete the “Shareholder Proposals”)Restructurings, and each of and/or to cause all Non-Final Injunctions relating to the Shareholder Proposals shall have been approved by a majority of Deferred Items or the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);transfer thereof to be lifted.
(ii) all conditions precedent From and after the Closing, and until such time as the Deferred Items have been transferred to the Merger applicable Buyer pursuant to Section 2.4(b)(iii) or Section 2.4(b)(iv) (each, a “Deferred Transfer”), the Deferred Items shall be held for such Buyer’s benefit and account and shall be managed and operated by the Sellers for such Buyer’s benefit and account, with all gains, income, losses, Taxes and Tax benefits or other items generated thereby to be for such Buyer’s account. The applicable Seller(s) and Buyer(s) shall use their respective commercially reasonable efforts to allow the Buyers to maintain the uninterrupted use and benefit of any Deferred Item to the date of its Deferred Transfer, and to protect and preserve the value of the Deferred Items during such period. Except as otherwise contemplated by this Section 2.4(b) or the other provisions of this Agreement, the Deferred Items shall be operated on a basis consistent with past practice and the Sellers’ pre-Closing obligations pursuant to Section 5.1 under this Agreement shall continue in force with respect to such Deferred Item until its Deferred Transfer occurs. The Buyers and the Sellers shall use commercially reasonable efforts to minimize any Tax liability resulting from Deferred Transfers. IR and its Affiliates shall have no liability, obligation or commitment to any Buyer arising out of the management or operation of Deferred Items other than those conditions for breach of this Agreement, gross negligence or willful misconduct, for which breach, gross negligence or willful misconduct IR and its Affiliates will indemnify the Buyers; provided, that IR and its Affiliates will have no liability, obligation or commitment for actions taken in accordance with the request or direction of Buyer Parents or their Affiliates. Except (i) as set forth in the immediately preceding sentence or (ii) to the extent relating to or arising from a breach of this Agreement, gross negligence or willful misconduct by their nature are to be satisfied at the closing Sellers, the Buyers shall reimburse the Sellers and shall indemnify and hold the Sellers harmless from and against all liabilities, obligations and commitments, incurred or asserted as a result of the MergerSellers’ post-Closing direct or indirect ownership, management or operation of the Deferred Items, including, without limitation, the amount of any additional Taxes payable (or carried-forward Tax losses or credits consumed) shall by the Sellers (whether currently or in the future), after application of the terms of this Agreement, as a result thereof in excess of the amount of Taxes which would have been satisfied payable by the Sellers, after application of the terms of this Agreement, if the Deferred Items had been transferred to the applicable Buyer on the terms set forth therein;Closing Date.
(iii) If the Company Deferred Transfer of any Deferred Item shall not have filed happened by December 31, 2007, Buyer Parents may, by delivery of written notice to IR, request that the parties expeditiously identify alternative means or structures by which any remaining Deferred Items (and/or the benefits thereof) may be transferred (or otherwise made available) to the applicable Buyer, and IR will cause the applicable Seller(s) to effect such transfer by such alternative means or structure as the Buyer Parents may reasonably request; provided, that the applicable Seller and applicable Buyer shall share equally any incremental transfer costs and Taxes associated with the State of North Carolina the Articles Amendment and such filing shall have been accepted;alternative.
(iv) all conditions precedent Subject to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at Section 2.4(b)(v), the closing of the transactions contemplated by the Investment Agreements) a transfer of each Deferred Item shall have been satisfied be effected on the terms set forth therein so that simultaneously with the Closingfifth Business Day after receipt of all applicable legally required Consents, the Company shall issue Common Stock to completion of a Restructuring and the Lead Investors in accordance with lifting of all applicable Non-Final Injunctions, or at such other time as the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;parties may agree.
(v) At any time on or after the SunTrust Settlement date that is the first anniversary of the Closing Date, so long as Buyer Parents’ failure to comply with the last sentence of Section 2.4(b)(i) is not the primary cause of the failure of any Deferred Item to be transferred, Buyer Parents may, by delivery of written notice to IR (each an “Abandonment Notice”), elect to abandon the purchase of the remaining Deferred Items. As promptly as practicable following the delivery of an Abandonment Notice, each of IR and Buyer Parents shall use its reasonable best efforts to restore the other party to the position it would have been effected;in with respect to the remaining Deferred Items had such items been Excluded Assets, which efforts shall include, without limitation, the following:
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) IR shall pay to Buyer Parents by wire transfer of immediately available funds to an account specified in writing by Buyer Parents an amount equal to the representations and warranties amount of the Company Purchase Price allocated to the remaining Deferred Items identified in such Abandonment Notice as set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of Schedule 2.7, together with interest thereon computed at the Prime Rate for the period from the Closing Date to the date of such payment; and
(B) Buyer Parents shall deliver to IR a statement reflecting the payments it has made to IR (“Payments”) and payments it has received from IR (“Receipts”) in respect of all gains, income, losses, Taxes and Tax benefits or other than representations and warranties that items generated by their terms speak as a remaining Deferred Item for the applicable Buyer’s account. If aggregate Payments exceed aggregate Receipts, IR shall promptly pay to Buyer Parents by wire transfer of another dateimmediately available funds to an account specified in writing by Buyer Parents an amount equal to the amount by which aggregate Payments exceed aggregate Receipts. If aggregate Receipts exceed aggregate Payments, Buyer Parents shall promptly pay to IR by wire transfer of immediately available funds to an account specified in writing by IR an amount equal to the amount by which representations and warranties aggregate Receipts exceed aggregate Payments. Any disputes with respect to the statement delivered by Buyer Parents hereunder shall be true and correct resolved in all respects as the manner provided in Section 2.6 for resolution of such other date) anddisputes relating to the Net Asset Value Statement.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Ingersoll Rand Co LTD)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxXxxxxxx Xxxxxxxxx Xxxxx & Xxxxxxx, WeissLLC, Rifkind0000 Xxxx Xxxxx Xxxxx, 0000 Xxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place CST on the business day after the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c), (d) and (de) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company Company, the Subsidiary and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the InvestorInvestor the Common Shares, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (which certificate or if shares of Common Stock are uncertificatedcertificates shall be issued without any restrictive legend, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver transfer the certificate representing the Preferred Shares and the original Old Warrant Trust Shares, to the CompanySubsidiary as contemplated by the terms of this Agreement.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that following conditions:
(i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and or other applicable law, if any, shall have expired, and ;
(ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement; and
(iii) the Company shall have obtained the consent of its shareholders to issue the Common Shares if such consent is required by NASDAQ (see Section 4.5 hereof).
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) completion between the Company shall have called a meeting date hereof and June 30, 2010, of its shareholders to vote on the sale (A) for cash or in an amendment to exchange for any of the Company’s Articles then outstanding trust preferred or capital securities or an exchange for any of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles then outstanding debt) of Incorporation reflecting the approval of a 100 for 1 reverse stock split at least $75 million of the Company’s Common Stock in one or more offerings, public or private (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules including any sale or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together exchanges that may close simultaneously with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”Exchange contemplated hereby);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date), except to the extent that the failure of such representations and warranties to be so true and correct (without giving effect to any qualifiers or exceptions relating to materiality or Company Material Adverse Effect (as defined below)), individually or in the aggregate or the failure to comply with such covenants, does not have and would not reasonably be likely to have a Company Material Adverse Effect and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer of the Company certifying to the effect that the conditions set forth in Section 1.2 (c) and (d)(i) and (ii) have been satisfied;
(iv) the Investor shall have received an amount equal to all accrued and unpaid distributions on the Trust Shares to, but excluding, the Closing Date in cash to an account designated by the Investor;
(v) the Company shall have delivered one or more certificates in proper form evidencing the Common Shares to the Investor or its designee(s), which certificate or certificates shall be issued without any restrictive legend;
(vi) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex D; and
(e) The obligation of the Company and the Subsidiary to consummate the Exchange is also subject to the fulfillment (or waiver by the Company and the Subsidiary) at or prior to the Closing of each of the following conditions: (i) the representations and warranties of the Investor set forth in this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andand the covenants of the Investor hereunder shall have been complied with, except to the extent that the failure of such representations and warranties to be so true and correct (without giving effect to any qualifiers or exceptions relating to materiality or Investor Material Adverse Effect (as defined below)), individually or in the aggregate or the failure to comply with such covenants, does not have and would not reasonably be likely to have an Investor Material Adverse Effect and (ii) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing.
Appears in 1 contract
The Closing. (a) The closing On the terms and subject to the conditions of this Agreement, the purchase and sale of the Exchange Purchased Units provided for in this Agreement, and consummation of the other transactions contemplated herein (the “Closing”), shall take place at (i) will 10:00 a.m. (Eastern Time) on the first Business Day following the satisfaction or waiver of all of the conditions to the obligations of the parties set forth in Section 6 as provided therein (excluding conditions that, by their terms, cannot be satisfied until Closing, but Closing shall be subject to the satisfaction or, if permissible, waiver of those conditions); provided, however, that if such Business Day would be after the 15th day of a calendar month, the Closing shall take place on the last day of such calendar month (or if such day is not a Business Day, the Business Day immediately following the last day of such calendar month) or (ii) a time and on a date mutually agreed upon in writing by the parties hereto, subject, in each case, to the satisfaction or waiver of all of the conditions to the obligations of the parties set forth in Section 6 as provided therein (excluding conditions that, by their terms, cannot be satisfied until Closing, but Closing shall be subject to the satisfaction or, if permissible, waiver of those conditions) (the date on which Closing occurs, the “Closing Date”). The Closing shall be effective as of 11:59 p.m. (Eastern Time) on the Closing Date and shall take place at the offices of XxxxXxxxxxxxx Xxxxxxx, Weisslocated at 000 Xxxxxxxxx Xxxxxx Xxxxxx, RifkindXxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via . By agreement of the electronic parties the Closing may take place by delivery of the documents to be delivered at Closing by facsimile or other exchange of documents and signature pages, as the parties may agreeelectronic transmission. The All deliveries by one party to any other party at Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) be deemed to have occurred simultaneously and (d) shall have been satisfied or waived, or at such other place, time and date as none shall be agreed between the Company effective until and the Investorunless all have occurred. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver provisions of the conditions to the Closing in this Section 1.18, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company failure to consummate the Exchange are subject to purchase and sale of the fulfillment (or waiver by the Company Purchased Units and the Investor, as applicableother transactions contemplated hereby on the date and time and at the place determined pursuant to this Section 2(f) prior to will not result in the Closing termination of the conditions that (i) this Agreement and will not relieve any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by obligation under this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Mastec Inc)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and (a) the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (b) the Cash Consideration and (ii) the Investor will deliver the certificate certificates representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of contemporaneous with or immediately following the closing of the transactions contemplated by Anchor Investments, assuming all of the Investment Agreements; provided that the other conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock or Non-Voting Common Stock are uncertificated, cause the transfer agent for the Common Stock or Non-Voting Common Stock, as applicable, to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate certificates representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange Exchange, including the payment of the dividends pursuant to Section 1.1(d)(ix) below, shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place New York time, on the business day after the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company Trust will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated), cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series C Shares and the original Old Warrant to the CompanyTrust, (iii) the Trust will use the Series C Shares, together with the proceeds of the issuance and sale by the Trust to the Company of $1,000,000 aggregate liquidation amount of Common Securities to purchase $936,000,000 aggregate principal amount of the Debentures and (iv) the Company will deliver to the Trust Debentures having an aggregate principal amount of $936,000,000.
(c) The respective obligations of each of the Investor Investor, the Trust and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company Company, the Trust and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III (x) Sections 3.4 and 3.6 of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date and
(y) Sections 3.1, 3.2, 3.3, 3.5, 3.7 and 3.8 of this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate 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)(i) have been satisfied;
(iii) the Company shall have delivered to the Investor the Amended and Restated Declaration of Trust and Trust Agreement, in substantially the form attached hereto as Annex A (the “Trust Agreement”), among the Company, the Bank of New York Mellon, a New York banking corporation, as property trustee (the “Bank”), BNY Mellon Trust of Delaware, a Delaware corporation, as Delaware trustee, and Xxxxx Xxxxxxxx, an individual, and Xxxxxxx Xxxxxxx, an individual, as administrative trustees, and the several Holders (as defined in the Trust Agreement), the Guarantee Agreement, in substantially the form attached hereto as Annex B (the “Guarantee Agreement”), between the Company and the Bank, as guarantee trustee, and the First Supplemental Indenture, in substantially the form attached hereto as Annex C (the “First Supplemental Indenture”), between the Company and the Bank, as trustee, which amends and supplements the Indenture in substantially the form attached hereto as Annex C (the “Base Indenture”), between the Company and the Bank; the Base Indenture and the First Supplemental Indenture are together referred to herein as the “Indenture”; the Trust Agreement, the Guarantee Agreement and the Indenture are collectively referred to herein as the “Governing Agreements”;
(iv) the Trust shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(v) the Company shall have delivered to the Investor written opinions from outside counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the forms attached hereto as Annexes X-0, X-0 and D-3; and
(vi) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers shall have duly consented in writing to such changes), as may be necessary, during the
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreementsdate hereof; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, will cause the transfer agent for the Common Stock Series C Preferred Shares (as applicable) to register the Exchange New Shares in the name of the Investor and deliver or cause to be delivered reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Exchanged Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied; and
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the New Shares to the Investor.
(e) The obligation of the Company to consummate the Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of the Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Investor shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing; and
(ii) the Company shall have received a certificate signed on behalf of the Investor by an executive officer or principal certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied.
Appears in 1 contract
Samples: Exchange Agreement (Castle Creek Capital Partners VII, LP)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ix) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(viii) have been satisfied;
(x) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer thereof certifying that all conditions precedent to the Closing have been satisfied or waived;
(xi) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(xii) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Exchange Shares to the Investor or its designee(s);
(xiii) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex B;
(xiv) the Exchange Shares and Warrant Shares (as defined below) shall have been authorized for listing on the NASDAQ Stock Market (“NASDAQ”), subject to official notice of issuance; and
(xv) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.1(d)(xv)(A) has been satisfied; “Senior Executive Officers” means the Company’s “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations.
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the day of on which the closing of Company shall close the transactions contemplated by the Investment AgreementsAgreement (as defined below); provided that all of the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series B Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting approval of its shareholders the NASDAQ Stock Market to vote on (A) an amendment to issue the Capital Securities without approval of the Company’s Articles of Incorporation (the “Articles Amendment”shareholders in reliance on Rule 5635(f) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Stock Market Listing Rules (previously received by the “Share Issuance Proposal”), Company in connection with the transactions contemplated hereby shall remain in full force and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split effect as of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Closing;
(ii) all conditions precedent the Company shall have closed the transactions contemplated by the Investment Agreement, dated as of April 29, 2010 (the “Investment Agreement”), by and among the Company, Pacific Capital Bank, National Association (the “Bank”) and SB Acquisition Company LLC, a Delaware limited liability company (“Ford”), pursuant to which, subject to the Merger terms and conditions set forth therein (other than those as such terms and conditions that by their nature are may be waived or amended, subject to be satisfied Section 5.12 hereof), the Company shall have received an equity recapitalization investment of $500 million and the Company shall have issued to Ford 225,000,000 shares of Common Stock at the closing a purchase price of $0.20 per share and 455,000 shares of the Merger) shall have been satisfied on the terms set forth thereinCompany’s Series C Convertible Participating Voting Preferred Stock at a purchase price of $1,000 per share;
(iii) the Company shall have filed with the State completed a cash tender offer for $50,000,000 in aggregate principal amount of North Carolina the Articles Amendment its Subordinated Debenture due 2014, and at least $18,000,000 in aggregate principal amount of its 9.22% Subordinated Bank Notes due 2011, in each case at a purchase price of $650.00 per $1,000 principal amount of such filing shall have been acceptedsecurities;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(v) the Investor shall have received a certificate 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)(iv) have been satisfied;
(vi) the Company shall have duly adopted and filed with the State of California a Certificate of Determination, having the effect of an amendment to its articles of incorporation (“Charter”), in substantially the form attached hereto as Annex B (the “New Certificate of Determination”) and such filing shall have been accepted;
(vii) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(viii) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(ix) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C; and
(x) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(x)(A) has been satisfied; “Senior Executive Officers” means the Company’s “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations.
Appears in 1 contract
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of XxxxCadwalader, Weiss, Rifkind, Xxxxxxx Xxxxxxxxxx & Xxxxxxxx Xxxx LLP, 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, or remotely via the electronic or other exchange of documents and signature pagesat 9:00 a.m., as the parties may agree. The Closing shall take place EST on the first business day immediately following the day on which all of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(cSections 1.2(c) and (d) shall have been are satisfied or waivedwaived (other than those conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction or waiver of those conditions), or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.11.2, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares Capital Securities to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Series C Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company holders of the Common Stock shall have called a meeting of its shareholders to duly approved, by proxy vote on or otherwise, (A) an amendment to the Company’s Articles increase of Incorporation (the “Articles Amendment”) reflecting an increase in the amount number of authorized shares of Common Stock sufficient from 100 million to issue all shares of Common Stock to be issued to the Equity Investors one billion and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of the shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 issuable upon conversion of the NASDAQ Listing Rules Capital Securities (the “Share Issuance ProposalUnderlying Common Shares”), and (C) an amendment to the Company’s Articles of Incorporation reflecting Investor upon the approval of a 100 for 1 reverse stock split conversion of the Capital Securities to shares of Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”)Stock;
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(iii) the Investor shall have received a certificate 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)(ii) have been satisfied;
(iv) the Company shall have duly adopted and filed with the Commonwealth of Virginia the amendment to its articles of incorporation (“Charter”) in substantially the form attached hereto as Annex B (the “New Certificate of Designations”) and such filing shall have been accepted;
(v) the Company shall have executed the Amended Warrant and delivered such executed Amended Warrant to the Investor or its designee(s);
(vi) the Company shall have delivered certificates in proper form or, with the prior consent of the Investor, evidence in book-entry form, evidencing the Capital Securities to the Investor or its designee(s);
(vii) the Company shall have delivered to the Investor written opinions from counsel to the Company, addressed to the Investor and dated as of the Closing Date, in substantially the form attached hereto as Annex C; and
(viii) (A) the Company shall have effected such changes to its compensation, bonus, incentive and other benefit plans, arrangements and agreements (including golden parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect to its Senior Executive Officers and any other employee of the Company or its Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such changes to be legally enforceable, each of its Senior Executive Officers and other employees shall have duly consented in writing to such changes), as may be necessary, during the period in which any obligation of the Company arising from financial assistance under the Troubled Asset Relief Program remains outstanding (such period, as it may be further described in the Compensation Regulations, the “Relevant Period”), in order to comply with Section 111 of EESA or the Compensation Regulations and (B) the Investor shall have received a certificate signed on behalf of the Company by a Senior Executive Officer certifying to the effect that the condition set forth in Section 1.2(d)(viii)(A) has been satisfied; “Senior Executive Officers” means the Company's “senior executive officers” as defined in Section 111 of the EESA and the Compensation Regulations.
Appears in 1 contract
Samples: Exchange Agreement
The Closing. (a) The closing Subject to Section 2.4(b) and subject also to the satisfaction or waiver of each of the Exchange conditions precedent to the Closing set forth in Article IV, the initial purchase and sale of Notes in the aggregate principal amount specified in the Company's initial Request for an Advance, if any, up to the Maximum Aggregate Advances shall take place at a closing (the “"Closing”") will take place at the offices of XxxxBenesch, WeissFriedlander, Rifkind, Xxxxxxx Coplxx & Xxxxxxxx LLPXronxxx, 0000 Xxxxxx xx xxx XX Xxxxxxx Xxxxxxxx, Xxx Xxxx000 Xxxxxx Xxxxxx, Xxx XxxxXxxxxxxxx, Xxxx 00000, xx the date hereof ("Closing Date"), or remotely via the electronic or at such other exchange of documents and signature pages, as place agreed upon by the parties may agree. hereto.
(b) The Closing shall take place is conditioned on the day of the closing simultaneous or prior closings of the transactions contemplated by the Investment Agreements; provided that Share Purchase Agreement and the Loan Documents and the satisfaction or waiver of all other conditions to Closing set forth in Section 1.1(c) and (d) shall have been satisfied or waivedArticle IV of this Agreement. As a result, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in is subject to change. The Company has provided or promptly shall provide each Purchaser which is a party to this Agreement with written notice of any anticipated initial Advance hereunder to be made on the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the CompanyClosing Date.
(c) The respective obligations of Once each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver Purchasers is notified by the Company personally (if in attendance at the Closing) or by telephone that each and the Investorevery condition to Closing has been or, as applicable) prior to the Closing simultaneously with such Purchaser's payment hereunder, will be, either satisfied or waived, each Purchaser shall then cause payment of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation principal amount of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable lawNotes being purchased on such date, if any, to be made to the Company by wire transfer of immediately available funds. The Company shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation furnished to the Purchasers the account information at the time the Company notifies the Purchasers of the Exchange as contemplated by this Agreementdate and time of the Closing.
(d) The obligation of the Investor Purchasers to consummate the Exchange is also make any Advance hereunder shall be subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each satisfaction of the following conditions:
conditions that at the date of making such Advance, and after giving effect thereto: (ia) no Event of Default or event which with the Company passage of time or giving of notice, or both, would constitute an Event of Default, shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to occurred and be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), then continuing and (Cb) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” each representation and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms warranty set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment in Section 3 hereof is true and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated correct as if then made. The acceptance by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement proceeds of any Advance shall have been effected;
(vi) be deemed to constitute as of the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into date of acceptance a representation and warranty by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company that all conditions to make such Advance set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andhave been satisfied.
Appears in 1 contract
Samples: Subordinated Note Purchase Agreement (Brantley Capital Corp)
The Closing. (a) The closing of the Preferred Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsSeptember 12, 2016; provided provided, however, that the conditions set forth in Section Sections 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Preferred Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Preferred Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Preferred Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement, and (iii) the Investor shall have received a non-control determination with respect to the Company from the Board of Governors of the Federal Reserve System (or the Federal Reserve Bank of San Francisco) and the California Department of Business Oversight, Division of Financial Institutions, and the Investor shall provide written evidence of the same to the Company on or prior to the Closing.
(d) The obligation of the Investor to consummate the Preferred Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence in book-entry form, evidencing the issuance of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Common Stock owned by the Investor, taking into account the Exchange Shares and the Common Stock owned by Patriot Financial Partners, L.P., to exceed 12.5% of the issued and outstanding shares of Common Stock.
(e) The obligation of the Company to consummate the Preferred Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) The representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date); and
(ii) The covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects.
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The Closing. (a) The closing of the Non-Voting Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment AgreementsFebruary 24, 2017; provided provided, however, that the conditions set forth in Section Sections 1.1(c), (d) and (de) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Voting Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) Investor and (ii) the Investor will deliver the certificate certificate(s) or book-entry shares representing the Preferred Non-Voting Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Non-Voting Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals approvals, non-objections or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Non-Voting Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, expired and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Non-Voting Exchange as contemplated by this Agreement or impose material limits on the ability of any party to this Agreement to consummate the transactions contemplated by this Agreement.. 1 30169533
(d) The obligation of the Investor to consummate the Non-Voting Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment Proposal”), (B) the issuance of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 of the NASDAQ Listing Rules (the “Share Issuance Proposal”), and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger (other than those conditions that by their nature are to be satisfied at the closing of the Merger) shall have been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements (other than those conditions that by their nature are to be satisfied at the closing of the transactions contemplated by the Investment Agreements) shall have been satisfied on the terms set forth therein so that simultaneously with the Closing, the Company shall issue Common Stock to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(ii) the Investor shall have received a certificate signed on behalf of the Company by an executive officer certifying to the effect that the conditions set forth in Section 1.1(d)(i) have been satisfied;
(iii) the Company shall have delivered evidence of issuance in book-entry form of the Exchange Shares to the Investor;
(iv) the Exchange Shares shall have been authorized for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance, if required; and
(v) the issuance of the Exchange Shares will not cause the number of shares of Voting Common Stock owned by the Investor, taking into account the Exchange Shares, to exceed 9.95% of the issued and outstanding shares of Voting Common Stock.
(e) The obligation of the Company to consummate the Non-Voting Exchange is also subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(i) (A) the representations and warranties of Investor set forth in Article IV of this Agreement shall be true and correct in all material respects as though made on and as of the date of this Agreement and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date) and (B) covenants and obligations of Investor to be performed or observed on or before the Closing Date under this Agreement will have been performed or observed in all material respects; and
(ii) the Company shall have received a certificate signed on behalf of Investor by an executive officer or managing principal certifying to the effect that the conditions set forth in Section 1.1(e)(i) have been satisfied.
Appears in 1 contract
Samples: Exchange Agreement (WashingtonFirst Bankshares, Inc.)
The Closing. (a) The closing of the Exchange (the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or remotely via the electronic or other exchange of documents and signature pages, as the parties may agree. The Closing shall take place on the day of the closing of the transactions contemplated by the Investment Agreements; provided that the conditions set forth in Section 1.1(c) and (d) shall have been satisfied or waived, or at such other place, time and date as shall be agreed between the Company and the Investor. The time and date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 1.1, at the Closing (i) the Company will deliver the Amended Warrant and the Exchange Shares to the Investor, as evidenced by one or more certificates dated the Closing Date and registered in the name of the Investor or its designee(s) (or if shares of Common Stock are uncertificated, cause the transfer agent for the Common Stock to register the Exchange Shares in the name of the Investor and deliver reasonably satisfactory evidence of such registration to the Investor) and (ii) the Investor will deliver the certificate representing the Preferred Shares and the original Old Warrant to the Company.
(c) The respective obligations of each of the Investor and the Company to consummate the Exchange are subject to the fulfillment (or waiver by the Company and the Investor, as applicable) prior to the Closing of the conditions that (i) any approvals or authorizations of all United States and other governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the consummation of the Exchange shall have been obtained or made in form and substance reasonably satisfactory to each party and shall be in full force and effect and all waiting periods required by United States and other applicable law, if any, shall have expired, and (ii) no provision of any applicable United States or other law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit consummation of the Exchange as contemplated by this Agreement.
(d) The obligation of the Investor to consummate the Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following conditions:
(i) the Company shall have called a meeting of its shareholders to vote on (A) an amendment to the Company’s Articles of Incorporation (the “Articles Amendment”) reflecting an increase in the amount of authorized shares of Common Stock sufficient to issue all shares of Common Stock to be issued to the Equity Investors and to the Investor as contemplated by this Agreement (the “Articles Amendment ProposalClosing”)) shall take place at the offices of Xxxxxx, (B) Xxxxx & Xxxxxxx LLP in New York, New York on the issuance third Business Day following satisfaction or waiver of shares of Common Stock to the Equity Investors and the Investor as contemplated by this Agreement and as required by Rule 5635 all of the NASDAQ Listing Rules (the “Share Issuance Proposal”)closing conditions set forth in Article X, Article XI and (C) an amendment to the Company’s Articles of Incorporation reflecting the approval of a 100 for 1 reverse stock split of the Common Stock (the “Reverse Stock Split”), if such approval is required by the NASDAQ Listing Rules or as the Company otherwise deems necessary (the “Stock Split Proposal,” and together with the Articles Amendment Proposal and the Stock Split Proposal, the “Shareholder Proposals”), and each of the Shareholder Proposals shall have been approved by a majority of the votes cast on such proposal at such meeting (the “Requisite Shareholder Vote”);
(ii) all conditions precedent to the Merger Article XII hereof (other than those conditions that by their nature terms are to be satisfied at the closing Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions) or on such other date as is mutually agreed by Buyer and the Merger) shall Company. Notwithstanding the foregoing, if the Marketing Period has not ended prior to the time that the conditions set forth in Article X, Article XI and Article XII hereof would have otherwise been satisfied on the terms set forth therein;
(iii) the Company shall have filed with the State of North Carolina the Articles Amendment and such filing shall have been accepted;
(iv) all conditions precedent to the transactions contemplated by the Investment Agreements or waived (other than those conditions that by their nature terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions), Buyer shall not be obligated to consummate the Closing prior to the earlier to occur of (i) a date before or during the Marketing Period specified by Buyer on three Business Days’ prior written notice to the Company (provided that such notice may be conditioned upon the simultaneous closing of the transactions contemplated Debt Financing and provided further, that if such Debt Financing has not closed by the Investment Agreementsdate specified in such notice for any reason, such notice shall be automatically deemed withdrawn), and (ii) the third Business Day immediately following the final day of the Marketing Period; provided, that if the Marketing Period has ended and such date in subclause (ii) would cause the Closing to occur after the Outside Date, then for purposes of subclause (ii), the Closing shall have been satisfied occur on the terms set forth therein so that simultaneously with the ClosingOutside Date, the Company shall issue Common Stock subject, in each case, to the Lead Investors in accordance with the Investment Agreements and shall issue Common Stock to the Additional Equity Investors in the Private Placement for aggregate gross proceeds to the Company of not less than $310,000,000;
(v) the SunTrust Settlement shall have been effected;
(vi) the DPA shall have become effective;
(vii) all approvals required to be obtained under the written agreement entered into by the Company with the Federal Reserve Bank of Richmond shall have been obtained;
(viii) (A) the representations and warranties satisfaction or, if permissible, waiver of the Company conditions set forth in Article III of this Agreement shall be true and correct in all respects as though made on and as of the Closing Date VII (other than representations and warranties those conditions that by their terms speak are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of those conditions). The date and time on which the Closing actually occurs is referred to herein as of another date, which representations and warranties shall be true and correct in all respects as of such other date) andthe “Closing Date”.
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