Conditions to Closings. (a) The obligations of the Company and of the Manager to cause the Investors to consummate the sale and purchase of the Purchased Shares and the Warrants at a Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following conditions: (i) The Manager and the Investors shall have obtained all Regulatory Approvals, which shall be in a form and substance reasonably acceptable to the Manager, and any conditions to completion of the transactions contemplated by this Agreement that are set forth therein shall have been satisfied in all respects; (ii) No judgment, injunction, decree or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated by this Agreement; and (iii) The Company shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and the Manager, in their sole discretion, that the terms of the Company’s sale of the Securities under this Agreement are fair to shareholders from a financial point of view. (b) The obligations of the Manager to cause the Investors to consummate the purchase of the Purchased Shares and the Warrants at a Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions: (i) The representations and warranties of the Company in Section 3 shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Change; (ii) The Company shall have complied in all material respects with its obligations under this Agreement that are required to be complied with at or prior to the Closing; (iii) Since the date of this Agreement, there shall have been no event, transaction, condition or change that has had or would reasonably be expected to have a Material Adverse Effect on the Company or the Bank; (iv) The Company’s Board of Directors shall have formally approved the execution and delivery of this Agreement and the Warrant, and the transactions contemplated therein, including but not limited to the sales of the Securities; (v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine or review, in its sole discretion, and the findings and results of such review shall be satisfactory to the Manager in its sole discretion; (vi) The Company shall have delivered to the Manager a copy of resolutions duly adopted by the Boards or Directors of the Company and the Bank Board of Directors, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, the Company’s Board of Directors and the Bank’s Board of Directors will be reconstituted so that three persons designated by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application law; (vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition of a “change in control” for any applicable Company Significant Agreement including any employment agreement filed with the SEC pursuant to Item 601 of Regulation S-K; (viii) The Company shall have paid to the Manager the fees and expenses as described in Section 9(o); (ix) The Company shall have complied with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and (x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions. (c) The obligations of the Company to consummate the sale of the Securities at the Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions: (i) The representations and warranties of the Investors in Section 4 shall be true and correct (without giving effect to any qualification as to materiality set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result in a Material Adverse Change; and (ii) The Investors shall have complied in all material respects with its obligations hereunder that are required to be complied with at or prior to the Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mission Community Bancorp)
Conditions to Closings. (a) Conditions to Each Party’s Obligations. The respective obligations of the Company Company, on the one hand, and of the Manager to cause Sellers, on the Investors other hand, to consummate the purchase and sale and purchase of the Purchased Primary Shares, shares purchased and sold pursuant to an Upsized Shares Offering, if applicable, and the Warrants at shares purchased and sold pursuant to a Closing Downsized Offering, if applicable, excluding any shares purchased and sold pursuant to an Overallotment Shares Offering, under this Agreement are subject to the fulfillmentsatisfaction, at or prior to or on the applicable First Closing Date, of the following conditions, unless waived by the Company and the Sellers in writing:
(i) The Manager and the Investors shall have obtained all Regulatory ApprovalsNo statute, which shall be in a form and substance reasonably acceptable to the Manager, and any conditions to completion of the transactions contemplated by this Agreement that are set forth therein rule or regulation shall have been satisfied in all respects;
(ii) No judgmentenacted or promulgated by any court, injunctionarbitral tribunal, decree administrative agency or commission or other legal restraint shall prohibitgovernmental or other regulatory authority, or have the effect of rendering unachievableany other federal, state or local or foreign authority or forum (a “Governmental Authority”) which prohibits the consummation of the transactions contemplated by this Agreementhereby; andand there shall be no material order, judgment, writ, injunction, decree, statute, rule or regulation or injunction of a court of competent jurisdiction in effect precluding consummation of the transactions contemplated hereby.
(iiiii) The Company Offering shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and the Manager, in their sole discretion, that the terms of the Company’s sale of the Securities under this Agreement are fair to shareholders from a financial point of viewclosed.
(b) The obligations of the Manager Conditions to cause the Investors to consummate the purchase of the Purchased Shares and the Warrants at a Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Company in Section 3 shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Change;
(ii) The Company shall have complied in all material respects with its obligations under this Agreement that are required to be complied with at or prior to the Closing;
(iii) Since the date of this Agreement, there shall have been no event, transaction, condition or change that has had or would reasonably be expected to have a Material Adverse Effect on the Company or the Bank;
(iv) The Company’s Board of Directors shall have formally approved the execution and delivery of this Agreement and the Warrant, and the transactions contemplated therein, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine or review, in its sole discretion, and the findings and results of such review shall be satisfactory to the Manager in its sole discretion;
(vi) The Company shall have delivered to the Manager a copy of resolutions duly adopted by the Boards or Directors of the Company and the Bank Board of Directors, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, the Company’s Board of Directors and the Bank’s Board of Directors will be reconstituted so that three persons designated by the Manager will be appointed to serve on each Obligations of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application law;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition of a “change in control” for any applicable Company Significant Agreement including any employment agreement filed with the SEC pursuant to Item 601 of Regulation S-K;
(viii) The Company shall have paid to the Manager the fees and expenses as described in Section 9(o);
(ix) The Company shall have complied with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions.
(c) . The obligations of the Company to consummate the sale purchase of the Securities at the Closing Primary Shares, shares to be purchased upon completion of an Upsized Shares Offering, if applicable, and shares to be purchased upon completion of a Downsized Offering, if applicable, excluding any shares to be purchased upon completion of an Overallotment Shares Offering, if applicable, under this Agreement are subject to the fulfillmentsatisfaction, at or prior to or on the applicable First Closing Date, of the following additional conditions, unless waived by the Company in writing:
(i) With respect to the Company’s obligation to purchase ▇▇▇▇▇▇ Shares,
(1) ▇▇▇▇▇▇ shall have performed and complied in all material respects with his obligations under this Agreement required to be performed by him at or prior to the First Closing Date.
(2) The representations and warranties of ▇▇▇▇▇▇ contained in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and at the First Closing Date as if made at and as of such date.
(3) ▇▇▇▇▇▇ shall have accepted the price of the Company’s Common Stock to be sold in the Offering.
(4) The Company shall have received ▇▇▇▇▇▇’▇ Closing deliveries pursuant to Sections 2.2 and 2.4 hereof, if applicable.
(ii) With respect to the Company’s obligation to purchase Estate Shares,
(1) The Representatives shall have performed and complied in all material respects with their obligations under this Agreement required to be performed by them at or prior to the First Closing Date.
(2) The representations and warranties of the Investors Representatives contained in Section 4 this Agreement shall be true and correct (without giving effect to any qualification as to materiality set forth therein) in all material respects, in each case as of the date hereof of this Agreement and at the First Closing Date as if made at and as of such date.
(3) The Representatives on behalf of the Closing Date, except for representations and warranties made as Estate shall have accepted the price of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties Company’s Common Stock to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result sold in a Material Adverse Change; andthe Offering.
(ii4) The Investors Company shall have complied in all material respects with its obligations hereunder that are required received the Representative’s Closing deliveries pursuant to be complied with at or prior to the ClosingSections 2.2 and 2.4 hereof, if applicable.
Appears in 1 contract
Sources: Stock Purchase Agreement (Greenbrier Companies Inc)
Conditions to Closings. (a) 6.1 Conditions to the Initial Investors' Obligations to Effect the First Closing. The obligations obligation of each Initial Investor to purchase the Company and of Initial Securities at the Manager to cause the Investors to consummate the sale and purchase of the Purchased Shares and the Warrants at a first Closing are is subject to the fulfillmentfulfillment to such Initial Investor's satisfaction, on or prior to or on the applicable First Closing Date, of the following conditions:, any of which may be waived by such Initial Investor (as to itself only):
(ia) The Manager representations and warranties made by the Investors Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the First Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the First Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the First Closing Date.
(b) The Company shall have obtained any and all Regulatory Approvalsconsents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Initial Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
(c) The Company shall have executed and delivered the Registration Rights Agreement.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(e) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the First Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (d) and (h) of this Section 6.1.
(f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the First Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(g) The Initial Investors shall have received an opinion from Sichenzia, Ross, Friedman and Ference, the Compa▇▇'▇ ▇▇▇nsel, ▇▇▇▇▇ as of the First Closing Date, in form and substance reasonably acceptable to the ManagerInitial Investors and addressing such legal matters as the Initial Investors may reasonably request.
(h) No stop order or suspension of trading shall have been imposed by the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock.
(i) The Company shall have executed and delivered the Escrow Release Instructions to Lead Investor Counsel.
(j) The Company shall have delivered irrevocable instructions, in the form attached hereto as Exhibit C, to its transfer agent concerning the issuance of any Anti-Dilution Shares with respect to the Initial Securities and the removal of any legends on the Initial Securities.
(k) The Company shall have delivered an irrevocable waiver from Pete Amico, the sole holder of ▇▇▇ ▇▇▇▇▇anding preferred stock, waiving his right to receive any dividends payable in Common Stock until after the Company has received Stockholder Approval and increased its authorized capital in the manner contemplated by Section 7.12, which waiver shall acknowledge that the Investors are third party beneficiaries of such irrevocable waiver by Pete Amico.
6.2 Cond▇▇▇▇▇▇ ▇▇ Obligations of the Company to Effect the First Closing. The Company's obligation to sell and issue the Initial Securities at the First Closing is subject to the fulfillment to the satisfaction of the Company on or prior to the First Closing Date of the following conditions, any of which may be waived by the Company:
(a) The representations and warranties made by the Initial Investors in Section 5 hereof, other than the representations and warranties contained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the "Investment Representations"), shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the First Closing Date with the same force and effect as if they had been made on and as of said date. The Investment Representations shall be true and correct in all respects when made, and shall be true and correct in all respects on the First Closing Date with the same force and effect as if they had been made on and as of said date. The Initial Investors shall have performed in all material respects all obligations and conditions herein required to be performed or observed by them on or prior to the First Closing Date.
(b) The Initial Investors shall have executed and delivered the Registration Rights Agreement.
(c) The Initial Investors shall have delivered the Initial Purchase Price to Lead Investor Counsel.
(d) The Initial Investors shall have executed and delivered the Escrow Release Instructions to Lead Investor Counsel.
6.3 Conditions to the Remaining Investors' Obligations to Effect Subsequent Closings. The obligation of the Remaining Investors to purchase the Remaining Securities at any Subsequent Closing is subject to the fulfillment to the Remaining Investors' satisfaction, on or prior to such Subsequent Closing Date, of the following conditions, any of which may be waived by the Remaining Investors:
(a) The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Subsequent Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Subsequent Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to completion be performed or observed by it on or prior to the Subsequent Closing Date.
(b) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Remaining Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
(c) The First Closing shall have been consummated in accordance with the terms of this Agreement.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(e) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the Subsequent Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (c), (d) and (h) of this Section 6.3.
(f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary or Assistant Secretary, dated as of the Subsequent Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement that are set forth therein and the other Transaction Documents and the issuance of the Remaining Securities, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(g) The Remaining Investors shall have received an opinion from Sichenzia, Ross, Friedman and Ference, the Compa▇▇'▇ ▇▇▇nsel, ▇▇▇▇▇ as of the Subsequent Closing Date, in substantially the form approved by the Remaining Investors' counsel.
(h) No stop order or suspension of trading shall have been satisfied imposed by the SEC or any other governmental or regulatory body with respect to public trading in all respects;the Common Stock.
(ii) No judgment, injunction, decree or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated by this Agreement; and
(iiii) The Company shall have received executed and delivered the written opinionEscrow Release Instructions to Lead Investor Counsel.
(j) The Company shall have delivered irrevocable instructions, in the form attached hereto as Exhibit C, to its transfer agent concerning the issuance of a nationally recognized investment banking firm and in a form which are acceptable any Anti-Dilution Shares with respect to Company the Remaining Securities and the Manager, in their sole discretion, that removal of any legends on the terms Remaining Securities.
6.4 Conditions to Obligations of the Company to Effect the Subsequent Closings. The Company’s sale 's obligation to sell and issue the Remaining Securities at any Subsequent Closing is subject to the fulfillment to the satisfaction of the Securities under this Agreement are fair Company on or prior to shareholders from a financial point such Subsequent Closing Date of viewthe following conditions, any of which may be waived by the Company:
(a) The representations and warranties made by the Remaining Investors in Section 5 hereof, other than the Investment Representations, shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Subsequent Closing Date with the same force and effect as if they had been made on and as of said date. The Investment Representations of the Remaining Investors shall be true and correct in all respects when made, and shall be true and correct in all respects on the Subsequent Closing Date with the same force and effect as if they had been made on and as of said date. The Remaining Investors shall have performed in all material respects all obligations and conditions herein required to be performed or observed by them on or prior to the Subsequent Closing Date.
(b) The obligations of the Manager to cause the Investors to consummate the purchase of the Purchased Shares and the Warrants at a First Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Company in Section 3 shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Change;
(ii) The Company shall have complied been consummated in all material respects accordance with its obligations under this Agreement that are required to be complied with at or prior to the Closing;
(iii) Since the date terms of this Agreement, there shall have been no event, transaction, condition or change that has had or would reasonably be expected to have a Material Adverse Effect on the Company or the Bank;
(iv) The Company’s Board of Directors shall have formally approved the execution and delivery of this Agreement and the Warrant, and the transactions contemplated therein, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine or review, in its sole discretion, and the findings and results of such review shall be satisfactory to the Manager in its sole discretion;
(vi) The Company shall have delivered to the Manager a copy of resolutions duly adopted by the Boards or Directors of the Company and the Bank Board of Directors, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, the Company’s Board of Directors and the Bank’s Board of Directors will be reconstituted so that three persons designated by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application law;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition of a “change in control” for any applicable Company Significant Agreement including any employment agreement filed with the SEC pursuant to Item 601 of Regulation S-K;
(viii) The Company shall have paid to the Manager the fees and expenses as described in Section 9(o);
(ix) The Company shall have complied with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions.
(c) The obligations of the Company to consummate the sale of the Securities at the Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Investors in Section 4 shall be true and correct (without giving effect to any qualification as to materiality set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result in a Material Adverse Change; and
(ii) The Remaining Investors shall have complied in all material respects with its obligations hereunder that are required delivered the Remaining Purchase Price to be complied with at or prior Lead Investor Counsel.
(d) The Remaining Investors shall have executed and delivered the Escrow Release Instructions to the ClosingLead Investor Counsel.
Appears in 1 contract
Sources: Purchase Agreement (Airtrax Inc)
Conditions to Closings. (a) To the Company’s Obligations. The obligations of the Company pursuant to Section 1.1 (Effective Date and of the Manager to cause the Investors to consummate the sale and purchase of the Purchased Shares and the Warrants at a Closings) in connection with each Closing are subject to the fulfillmentsatisfaction, prior to or on the applicable Closing Datewaiver in accordance with this Agreement, of the following conditionsconditions on or before the Closing Date for such Closing:
(i) The Manager the representations and warranties of the Investors shall have obtained all Regulatory Approvals, which Purchaser contained herein shall be true and correct as of such Closing Date (unless expressly made as of an earlier date herein in a form and substance reasonably acceptable to the Manager, and any conditions to completion which case they shall be accurate as of the transactions contemplated by this Agreement that are set forth therein shall have been satisfied in all respectssuch date);
(ii) No judgmentall obligations, injunction, decree covenants and agreements required to be performed by the Purchaser on or prior to such Closing Date (other legal restraint than the obligations set forth in Section 1.1 (Effective Date and Closings) to be performed on the Closing Date for such Closing) shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated by this Agreementbeen performed; and
(iii) The Company shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and delivery by the Manager, in their sole discretion, that the terms Purchaser of the Company’s sale of items the Securities under this Agreement are fair Purchaser is required to shareholders from a financial point of viewdeliver prior to such Closing Date pursuant to Section 1.2(b) (Other Deliveries; At Each Closing).
(b) To the Purchaser’s Obligations. The obligations of the Manager Purchaser pursuant to cause the Investors to consummate the purchase of the Purchased Shares Section 1.1 (Effective Date and the Warrants at a Closings) in connection with each Closing are subject to the fulfillmentsatisfaction, prior to or on the applicable Closing Datewaiver in accordance with this Agreement, of the following additional conditionsconditions (the “Closing Conditions”) on or before the Closing Date for such Closing, both before and after giving effect to such Closing:
(i) The representations and warranties of the items that the Company in is required to deliver on or prior to such Closing Date pursuant to Section 3 1.2(b) (Other Deliveries; At Each Closing) shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Changehave been delivered;
(ii) The Company shall (A) all Purchased Securities that have complied in all material respects with its obligations under this Agreement that are been required to be complied with at delivered pursuant to any Transaction Documents prior to such Closing Date shall have been delivered when required (including provisions requiring the removal of any legend on any Purchased Security) and (B) any obligation due and payable to any Purchaser Party on or prior to the Closingsuch Closing Date shall have been fully satisfied within at most five (5) business days of its due date;
(iii) Since after giving effect to such Closing (and including all Purchased Securities requested to be purchased under such Advance Notice and any other outstanding Advance Notice), the date aggregate number of this Agreement, there Transaction Securities acquired hereunder shall have been no event, transaction, condition or change that has had or would reasonably be expected to have a Material Adverse Effect on not exceed the Company or amount of such Transaction Securities registered under the BankRegistration Statement in effect as of the Closing Date for such Closing;
(iv) The Company’s Board of Directors after giving effect to such Closing, the aggregate Purchase Price for all Closings having occurred hereunder shall have formally approved not exceed $25,000,000 (the execution and delivery of this Agreement and “Maximum Aggregate Purchase Price”); provided, that the Warrant, and the transactions contemplated therein, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine or reviewPurchaser may, in its sole discretion, and the findings and results of such review shall be satisfactory choose to honor a Advance Notice for an Expanded Closing if, after giving effect to the Manager in its sole discretionClosing thereunder, the aggregate Purchase Price for all Closings having occurred hereunder does not exceed 115% of the Maximum Aggregate Purchase Price;
(viv) The Company after giving effect to such Closing (and including all Purchased Securities requested to be purchased under the Advance Notice for such Closing and any other outstanding Advance Notice), the aggregate number of Purchased Securities purchased at all Closings shall have delivered not exceed the Exchange Cap, calculated as of the Effective Date, unless, to the Manager a copy of resolutions duly adopted extent permitted by the Boards or Directors Regulations of the Company and the Bank Board of Directorssuch Principal Trading Market, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, (A) the Company’s Board stockholders have approved such issuance in accordance with the Regulations of Directors such Principal Trading Market, (B) the Average Purchase Price equal or exceeds the Minimum Price or (C) the Company has obtained, for the benefit of, delivered to, and in form and substance satisfactory to, the Bank’s Board Purchaser, a written opinion of Directors will be reconstituted so outside counsel that three persons designated such issuance and sale is otherwise permitted by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as Regulations of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application lawPrincipal Trading Market;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition of a “change in control” for any applicable Company Significant Agreement including any employment agreement filed with the SEC pursuant to Item 601 of Regulation S-K;
(viii) The Company shall have paid to the Manager the fees and expenses as described in Section 9(o);
(ix) The Company shall have complied with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions.
(c) The obligations of the Company to consummate the sale of the Securities at the Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Investors in Section 4 shall be true and correct (without giving effect to any qualification as to materiality set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result in a Material Adverse Change; and
(ii) The Investors shall have complied in all material respects with its obligations hereunder that are required to be complied with at or prior to the Closing.
Appears in 1 contract
Sources: Directed Stock Purchase Agreement (Vsee Health, Inc.)
Conditions to Closings. (a) To the Company’s Obligations. The obligations of the Company pursuant to Section 1.1 (Effective Date and of the Manager to cause the Investors to consummate the sale and purchase of the Purchased Shares and the Warrants at a Closings) in connection with each Closing are subject to the fulfillmentsatisfaction, prior to or on the applicable Closing Datewaiver in accordance with this Agreement, of the following conditionsconditions on or before the Closing Date for such Closing:
(i) The Manager the representations and warranties of the Investors shall have obtained all Regulatory Approvals, which Purchaser contained herein shall be true and correct as of such Closing Date (unless expressly made as of an earlier date herein in a form and substance reasonably acceptable to the Manager, and any conditions to completion which case they shall be accurate as of the transactions contemplated by this Agreement that are set forth therein shall have been satisfied in all respectssuch date);
(ii) No judgmentall obligations, injunction, decree covenants and agreements required to be performed by the Purchaser on or prior to such Closing Date (other legal restraint than the obligations set forth in Section 1.1 (Effective Date and Closings) to be performed on the Closing Date for such Closing) shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated by this Agreementbeen performed; and
(iii) The Company shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and delivery by the Manager, in their sole discretion, that the terms Purchaser of the Company’s sale of items the Securities under this Agreement are fair Purchaser is required to shareholders from a financial point of viewdeliver prior to such Closing Date pursuant to Section 1.2(b) (Other Deliveries; At Each Closing).
(b) To the Purchaser’s Obligations. The obligations of the Manager Purchaser pursuant to cause the Investors to consummate the purchase of the Purchased Shares Section 1.1 (Effective Date and the Warrants at a Closings) in connection with each Closing are subject to the fulfillmentsatisfaction, prior to or on the applicable Closing Datewaiver in accordance with this Agreement, of the following additional conditionsconditions (the “Closing Conditions”) on or before the Closing Date for such Closing, both before and after giving effect to such Closing:
(i) The representations and warranties of the items that the Company in is required to deliver on or prior to such Closing Date pursuant to Section 3 1.2(b) (Other Deliveries; At Each Closing) shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Changehave been delivered;
(ii) The Company shall (A) all Purchased Securities that have complied in all material respects with its obligations under this Agreement that are been required to be complied with at delivered pursuant to any Transaction Documents prior to such Closing Date shall have been delivered when required (including provisions requiring the removal of any legend on any Purchased Security) and (B) any obligation due and payable to any Purchaser Party on or prior to the Closingsuch Closing Date shall have been fully satisfied within at most five (5) business days of its due date;
(iii) Since after giving effect to such Closing (and including all Purchased Securities requested to be purchased under such Advance Notice and any other outstanding Advance Notice), the date aggregate number of this Agreement, there Transaction Securities acquired hereunder shall have been no event, transaction, condition or change that has had or would reasonably be expected to have a Material Adverse Effect on not exceed the Company or amount of such Transaction Securities registered under the BankRegistration Statement in effect as of the Closing Date for such Closing;
(iv) The Company’s Board of Directors after giving effect to such Closing, the aggregate Purchase Price for all Closings having occurred hereunder shall have formally approved not exceed $300,000,000 (the execution and delivery of this Agreement and “Maximum Aggregate Purchase Price”); provided, that the Warrant, and the transactions contemplated therein, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine or reviewPurchaser may, in its sole discretion, and the findings and results of such review shall be satisfactory choose to honor an Advance Notice for an Expanded Closing if, after giving effect to the Manager in its sole discretionClosing thereunder, the aggregate Purchase Price for all Closings having occurred hereunder does not exceed 115% of the Maximum Aggregate Purchase Price;
(viv) The Company after giving effect to such Closing (and including all Purchased Securities requested to be purchased under the Advance Notice for such Closing and any other outstanding Advance Notice), the aggregate number of Purchased Securities purchased at all Closings shall have delivered not exceed the Exchange Cap, calculated as of the Effective Date, unless, to the Manager a copy of resolutions duly adopted extent permitted by the Boards or Directors Regulations of the Company and the Bank Board of Directorssuch Principal Trading Market, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, (A) the Company’s Board stockholders have approved such issuance in accordance with the Regulations of Directors such Principal Trading Market, (B) the Average Purchase Price equal or exceeds the Minimum Price or (C) the Company has obtained, for the benefit of, delivered to, and in form and substance satisfactory to, the Bank’s Board Purchaser, a written opinion of Directors will be reconstituted so outside counsel that three persons designated such issuance and sale is otherwise permitted by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as Regulations of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application lawPrincipal Trading Market;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition of a “change in control” for any applicable Company Significant Agreement including any employment agreement filed with the SEC pursuant to Item 601 of Regulation S-K;
(viii) The Company shall have paid to the Manager the fees and expenses as described in Section 9(o);
(ix) The Company shall have complied with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions.
(c) The obligations of the Company to consummate the sale of the Securities at the Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Investors in Section 4 shall be true and correct (without giving effect to any qualification as to materiality set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result in a Material Adverse Change; and
(ii) The Investors shall have complied in all material respects with its obligations hereunder that are required to be complied with at or prior to the Closing.
Appears in 1 contract
Conditions to Closings. (a) Conditions to the Obligations of Cablevision, RGC and GHC. The obligations of the Company and each of the Manager to cause the Investors Cablevision, RGC or GHC to consummate the sale and purchase of the Purchased Shares and the Warrants transactions contemplated to occur at a any Closing are is subject to the fulfillmentsatisfaction (or waiver by Cablevision, prior to RGC or on GHC, as the applicable case may be) as of the time of such Closing Date, of the following conditions:
(i) The Manager and the Investors shall have obtained all Regulatory Approvals, which shall be in a form and substance reasonably acceptable to the Manager, and any conditions to completion of the transactions contemplated by this Agreement that are set forth therein shall have been satisfied in all respects;
(ii) No judgment, injunction, decree or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated by this Agreement; and
(iii) The Company shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and the Manager, in their sole discretion, that the terms of the Company’s sale of the Securities under this Agreement are fair to shareholders from a financial point of view.
(b) The obligations of the Manager to cause the Investors to consummate the purchase of the Purchased Shares and the Warrants at a Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Company each of ITTE and ITT MSG made in Section 3 this Agreement shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) correct, as of the date hereof and at and as of the time of the applicable Closing Date, except for representations and warranties made as of a specific date, which will be though made as of such specified datetime, except, in each case, where except to the failure of extent such representations or and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct (without giving effect to any qualification on and as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Change;
(ii) The Company of such earlier date). ITTE and ITT MSG shall have performed or complied in all material respects with its all obligations under and covenants required by this Agreement that are required to be performed or complied with by each of them by the time of such Closing. ITT MSG shall have delivered to Cablevision a certificate dated such Closing Date and signed by an authorized officer of ITT MSG confirming the foregoing.
(ii) RGC or MSGE (dependent upon which purchases the Shares) and GHC or MSG (dependent upon which purchases the Initial Transferred Interest), at the Initial Closing, and Cablevision or prior MSG (dependent upon which purchases the applicable ITT MSG Interest), at any subsequent Closing, shall have received an opinion dated the applicable Closing Date of Cravath, Swaine & ▇▇▇▇▇, counsel to ITTE and ITT MSG, in form and substance reasonably satisfactory to Cablevision and an opinion dated such Closing Date of the Closing;general counsel of ITT or an officer responsible for legal affairs of the parent of ITTE or ITT MSG in form and substance reasonably satisfactory to Cablevision.
(iii) Since The parties shall have received all authorizations, consents, orders and approvals of all Governmental Entities required in order to consummate the transactions contemplated to occur at the applicable Closing. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition shall be in force and have the effect of (A) preventing the consummation of the transactions contemplated to occur at such Closing, (B) prohibiting or materially limiting the ownership or operation by Cablevision, RGC, GHC, MSGE or MSG of, or compelling Cablevision, RGC, GHC, MSGE or MSG to dispose of or hold separate any material portion of, the business or assets of MSG, in each case as a result of the trans actions contemplated to occur at such Closing or (C) imposing material limitations on the ability of Cablevision, RGC or GHC to acquire or hold, or exercise full rights of ownership of, the Shares or the ITT MSG Interest to be transferred at such Closing.
(iv) There shall not be pending or threatened by any Governmental Entity any Action (or by any other person any Action which has a reasonable likelihood of success), (A) challenging or seeking to restrain or prohibit consummation of the transactions contemplated to occur at the applicable Closing or seeking to obtain from Cablevision or any of its Affiliates in connection with such transactions any damages that are material in relation to the investment to be made by Cablevision, RGC or GHC in MSG, (B) seeking to prohibit or materially limit the ownership or operation by Cablevision, RGC, GHC, MSGE or MSG or any of their respective Affiliates of any material portion of the business or assets of MSG, or to compel Cablevision, MSGE or MSG to dispose of or hold separate any material portion of the business or assets of MSG, in each case as a result of the transactions contemplated to occur at such Closing, or (C) seeking to impose material limitations on the ability of Cablevision (or, in respect of the Initial Closing, any person controlling Cablevision), RGC or GHC to acquire or hold, or exercise full rights of ownership of, the Shares or the ITT MSG Interest to be transferred at such Closing, as the case may be; provided, however, that this condition shall be deemed to be waived by Cablevision, RGC and GHC as to any Action (except for any Action by any Governmental Entity) if the sole potential impact of such Action would be a judgment for money damages and ITT provides to Cablevision, RGC and GHC and their respective Affiliates complete indemnification in form and substance reasonably satisfactory to Cablevision with respect to any such Action.
(v) Any waiting period under the HSR Act applicable to the transactions contemplated to occur at the applicable Closing shall have expired or been terminated.
(vi) Cablevision, RGC, GHC and MSG shall have received all necessary approvals from the NBA and the NHL in accordance with the League Rules to enable them to consummate the transactions contemplated by this Agreement to occur at such Closing and such approvals shall be in effect.
(vii) With respect to the Initial Closing only, the Agent Bank shall not have exercised its right to refuse to provide funds to MSG due to (A) there occurring after the date of this Agreement, there shall have been no the Commitment Letter any material adverse change in or any event, transaction, condition development or change circumstance that has had or would reasonably be expected to will with the passage of time have a Material Adverse Effect on material adverse effect on, the Company business, assets, operations, property or financial condition of MSG and its subsidiaries, taken as a whole, other than changes relating to the economy in general or resulting from industry-wide developments affecting companies in similar businesses, (B) the Agent Bank;
(iv) The Company’s Board 's becoming aware after the date of Directors shall have formally approved the Commitment Letter but prior to the execution and delivery of this Agreement and the Warrantof any information or other matter affecting MSG, and the transactions contemplated thereinCablevision, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine Rainbow or review, in its sole discretion, and the findings and results of such review shall be satisfactory to the Manager in its sole discretion;
(vi) The Company shall have delivered to the Manager a copy of resolutions duly adopted by the Boards or Directors of the Company and the Bank Board of Directors, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, the Company’s Board of Directors and the Bank’s Board of Directors will be reconstituted so that three persons designated by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application law;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition Commitment Letter which is inconsistent in a material and adverse manner with any such information or other matter disclosed to the Agent Bank prior to the date of the Commitment Letter or (C) there having occurred a “material disruption of or material adverse change in control” for any applicable Company Significant Agreement including any employment agreement filed with financial, banking or capital market conditions generally (in contrast to market reception of the SEC Facilities (as defined in the Commitment Letter) in particular) that, in the Agent Bank's reasonable judgment, materially impairs syndication of the credit facilities arranged pursuant to Item 601 the Commitment Letter; provided that the failure of Regulation S-K;any such condition is not caused by any action by SportsChannel New York or any action by Cablevision or any of its Affiliates under affiliation agreements with MSG.
(viii) The Company Each of the Ancillary Agreements and the Partnership Agreement shall have paid to the Manager the fees been executed and expenses as described in Section 9(o);
(ix) The Company shall have complied with any written request from the Manager to prepare delivered by each party thereto and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions.
(c) The obligations of the Company to consummate the sale of the Securities at the Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Investors in Section 4 shall be true in full force and correct (without giving effect to any qualification as to materiality set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result in a Material Adverse Change; and
(ii) The Investors shall have complied in all material respects accordance with its obligations hereunder that are required to be complied with at or prior to the Closingtheir terms.
Appears in 1 contract
Sources: Partnership Interest Transfer Agreement (Cablevision Systems Corp)
Conditions to Closings. (a) Conditions to the Obligations of Cablevision, RGC and GHC. The obligations of the Company and each of the Manager to cause the Investors Cablevision, RGC or GHC to consummate the sale and purchase of the Purchased Shares and the Warrants transactions contemplated to occur at a any Closing are is subject to the fulfillmentsatisfaction (or waiver by Cablevision, prior to RGC or on GHC, as the applicable case may be) as of the time of such Closing Date, of the following conditions:
(i) The Manager and the Investors shall have obtained all Regulatory Approvals, which shall be in a form and substance reasonably acceptable to the Manager, and any conditions to completion of the transactions contemplated by this Agreement that are set forth therein shall have been satisfied in all respects;
(ii) No judgment, injunction, decree or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated by this Agreement; and
(iii) The Company shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and the Manager, in their sole discretion, that the terms of the Company’s sale of the Securities under this Agreement are fair to shareholders from a financial point of view.
(b) The obligations of the Manager to cause the Investors to consummate the purchase of the Purchased Shares and the Warrants at a Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Company each of ITTE and ITT MSG made in Section 3 this Agreement shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) correct, as of the date hereof and at and as of the time of the applicable Closing Date, except for representations and warranties made as of a specific date, which will be though made as of such specified datetime, except, in each case, where except to the failure of extent such representations or and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct (without giving effect to any qualification on and as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Change;
(ii) The Company of such earlier date). ITTE and ITT MSG shall have performed or complied in all material respects with its all obligations under and covenants required by this Agreement that are required to be performed or complied with by each of them by the time of such Closing. ITT MSG shall have delivered to Cablevision a certificate dated such Closing Date and signed by an authorized officer of ITT MSG confirming the foregoing.
(ii) RGC or MSGE (dependent upon which purchases the Shares) and GHC or MSG (dependent upon which purchases the Initial Transferred Interest), at the Initial Closing, and Cablevision or prior MSG (dependent upon which purchases the applicable ITT MSG Interest), at any subsequent Closing, shall have received an opinion dated the applicable Closing Date of Cravath, Swaine & ▇▇▇▇▇, counsel to ITTE and ITT MSG, in form and substance reasonably satisfactory to Cablevision and an opinion dated such Closing Date of the Closing;general counsel of ITT or an officer responsible for legal affairs of the parent of ITTE or ITT MSG in form and substance reasonably satisfactory to Cablevision.
(iii) Since The parties shall have received all authorizations, consents, orders and approvals of all Governmental Entities required in order to consummate the transactions contemplated to occur at the applicable Closing. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition shall be in force and have the effect of (A) preventing the consummation of the transactions contemplated to occur at such Closing, (B) prohibiting or materially limiting the ownership or operation by Cablevision, RGC, GHC, MSGE or MSG of, or compelling Cablevision, RGC, GHC, MSGE or MSG to dispose of or hold separate any material portion of, the business or assets of MSG, in each case as a result of the transactions contemplated to occur at such Closing or (C) imposing material limitations on the ability of Cablevision, RGC or GHC to acquire or hold, or exercise full rights of ownership of, the Shares or the ITT MSG Interest to be transferred at such Closing.
(iv) There shall not be pending or threatened by any Governmental Entity any Action (or by any other person any Action which has a reasonable likelihood of success), (A) challenging or seeking to restrain or prohibit consummation of the transactions contemplated to occur at the applicable Closing or seeking to obtain from Cablevision or any of its Affiliates in connection with such transactions any damages that are material in relation to the investment to be made by Cablevision, RGC or GHC in MSG, (B) seeking to prohibit or materially limit the ownership or operation by Cablevision, RGC, GHC, MSGE or MSG or any of their respective Affiliates of any material portion of the business or assets of MSG, or to compel Cablevision, MSGE or MSG to dispose of or hold separate any material portion of the business or assets of MSG, in each case as a result of the transactions contemplated to occur at such Closing, or (C) seeking to impose material limitations on the ability of Cablevision (or, in respect of the Initial Closing, any person controlling Cablevision), RGC or GHC to acquire or hold, or exercise full rights of ownership of, the Shares or the ITT MSG Interest to be transferred at such Closing, as the case may be; provided, however, that this condition shall be deemed to be waived by Cablevision, RGC and GHC as to any Action (except for any Action by any Governmental Entity) if the sole potential impact of such Action would be a judgment for money damages and ITT provides to Cablevision, RGC and GHC and their respective Affiliates complete indemnification in form and substance reasonably satisfactory to Cablevision with respect to any such Action.
(v) Any waiting period under the HSR Act applicable to the transactions contemplated to occur at the applicable Closing shall have expired or been terminated.
(vi) Cablevision, RGC, GHC and MSG shall have received all necessary approvals from the NBA and the NHL in accordance with the League Rules to enable them to consummate the transactions contemplated by this Agreement to occur at such Closing and such approvals shall be in effect.
(vii) With respect to the Initial Closing only, the Agent Bank shall not have exercised its right to refuse to provide funds to MSG due to (A) there occurring after the date of this Agreement, there shall have been no the Commitment Letter any material adverse change in or any event, transaction, condition development or change circumstance that has had or would reasonably be expected to will with the passage of time have a Material Adverse Effect on material adverse effect on, the Company business, assets, operations, property or financial condition of MSG and its subsidiaries, taken as a whole, other than changes relating to the economy in general or resulting from industry-wide developments affecting companies in similar businesses, (B) the Agent Bank;
(iv) The Company’s Board 's becoming aware after the date of Directors shall have formally approved the Commitment Letter but prior to the execution and delivery of this Agreement and the Warrantof any information or other matter affecting MSG, and the transactions contemplated thereinCablevision, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine Rainbow or review, in its sole discretion, and the findings and results of such review shall be satisfactory to the Manager in its sole discretion;
(vi) The Company shall have delivered to the Manager a copy of resolutions duly adopted by the Boards or Directors of the Company and the Bank Board of Directors, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, the Company’s Board of Directors and the Bank’s Board of Directors will be reconstituted so that three persons designated by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application law;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition Commitment Letter which is inconsistent in a material and adverse manner with any such information or other matter disclosed to the Agent Bank prior to the date of the Commitment Letter or (C) there having occurred a “material disruption of or material adverse change in control” for any applicable Company Significant Agreement including any employment agreement filed with financial, banking or capital market conditions generally (in contrast to market reception of the SEC Facilities (as defined in the Commitment Letter) in particular) that, in the Agent Bank's reasonable judgment, materially impairs syndication of the credit facilities arranged pursuant to Item 601 the Commitment Letter; provided that the failure of Regulation S-K;any such condition is not caused by any action by SportsChannel New York or any action by Cablevision or any of its Affiliates under affiliation agreements with MSG.
(viii) The Company Each of the Ancillary Agreements and the Partnership Agreement shall have paid to the Manager the fees been executed and expenses as described delivered by each party thereto and shall be in Section 9(o);
(ix) The Company shall have complied full force and effect in accordance with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditionstheir terms.
(cb) Conditions to the Obligations of ITTE and ITT MSG. The obligations of the Company each of ITTE or ITT MSG to consummate the sale of the Securities transactions contemplated to occur at the any Closing are is subject to the fulfillment, prior to satisfaction (or on waiver by ITTE or ITT MSG) as of the applicable time of such Closing Date, of the following additional conditions:
(i) The representations and warranties of the Investors Cablevision, RGC, GHC and MSG made in Section 4 this Agreement shall be true and correct (without giving effect to any qualification as to materiality set forth therein) correct, as of the date hereof and at and as of the time of the applicable Closing Date, except for representations and warranties made as of a specific date, which will be though made as of such specified datetime, except, in each case, where except to the failure of extent such representations or and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct (without giving effect to any qualification on and as to materiality set forth therein) would not result in a Material Adverse Change; and
(ii) The Investors of such earlier date). Cablevision, RGC, GHC and MSG shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by each of them by the time of such Closing. Cablevision shall have delivered to ITT MSG a certificate dated the applicable Closing Date and signed by an authorized officer of Cablevision confirming the foregoing.
(ii) ITT MSG and, at the Initial Closing, ITTE shall have received an opinion dated the applicable Closing Date of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to Cablevision, RGC and GHC, in form and substance reasonably satisfactory to ITT MSG, an opinion dated such Closing Date of the general counsel of Cablevision or an officer responsible for legal affairs of the parent of RGC or GHC in form and substance reasonably satisfactory to ITT MSG and, at a Closing at which MSG is to redeem an ITT MSG Interest, an opinion dated such Closing Date of the general counsel of MSG, in form and substance reasonably satisfactory to ITT MSG.
(iii) The parties shall have received all authorizations, consents, orders and approvals of all Governmental Entities required in order to consummate the transactions contemplated to occur at the applicable Closing. No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition shall be in force and have the effect of preventing the consummation of the transactions contemplated to occur at such Closing.
(iv) There shall not be pending or threatened by any Governmental Entity any Action (or by any other person any Action which has a reasonable likelihood of success), challenging or seeking to restrain or prohibit consummation of the transactions contemplated to occur at the applicable Closing or seeking to obtain from ITT MSG or any of its obligations hereunder Subsidiaries or any of their respective Affiliates in connection with such transactions any damages that are required material in relation to the investment that ITT MSG has in MSG immediately prior to such Closing.
(v) Any waiting period under the HSR Act applicable to the transactions contemplated to occur at the applicable Closing shall have expired or been terminated.
(vi) Cablevision, RGC, GHC and MSG shall have received all necessary approvals from the NBA and the NHL in accordance with the League Rules to enable them to consummate all the transactions contemplated by this Agreement and such approvals shall be in effect.
(A) If Cablevision Shares are to be complied issued at the applicable Closing, the Registration Statement covering the resale of such Cablevision Shares and complying with the requirements of Sections 2.06 and 4.02 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, (B) Cablevision and its Affiliates, as necessary, and ITT MSG and its Affiliates, as necessary, shall have received all state securities or "blue sky" authorizations necessary to sell such Cablevision Shares as contemplated by this Agreement and (C) all actions, filings, documents and other things necessary for the closing of the registered resale of Cablevision Shares contemplated by Section 2.06 to occur simultaneously with such Closing shall be completed, prepared and in final order.
(viii) All Cablevision Shares to be issued at the applicable Closing shall have been approved for listing on the American Stock Exchange, Inc. or prior such other exchange or automated interdealer quotation system upon which such Cablevision Shares are then listed, subject only to official notice of issuance.
(ix) Each of the ClosingAncillary Agreements and the Partnership Agreement shall be executed and delivered by each party thereto and shall be in full force and effect in accordance with their terms.
Appears in 1 contract
Sources: Partnership Interest Transfer Agreement (Itt Corp /Nv/)
Conditions to Closings. (a) The obligations of the Company and of the Manager to cause the Investors Purchaser to consummate the sale and purchase of trans actions contemplated hereby at the Purchased Shares and the Warrants at a Closing Closings are subject to the fulfillmentsatisfaction of the following conditions: no temporary restraining order, prior preliminary or permanent injunction or other order or decree which prevents consequences of the consummation of the transactions contemplated hereby shall have been issued and remain in effect, and no statute, rule or regulation shall have been enacted by any governmental authority (of the United States or otherwise) which prevents or substantially modifies to the detriment of the Purchaser the conditions or on the applicable Closing Dateconsummation of the transactions contemplated hereby; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(b) The obligations of the Purchaser to consummate the transactions contemplated hereby at the Closings are subject to the satisfaction or waiver of the following conditions:
(i) The Manager the representations and warranties of the Company set forth in Section 2 of this Agreement shall be true and correct in all material respects as of the date when made and (unless made as of a specified date) as of the Closing Dates; and the Investors Company shall have obtained performed in all Regulatory Approvals, which shall material respects its covenants set forth in this Agreement to be in a form and substance reasonably acceptable performed prior to the Manager, Closing Dates and shall not have taken any action which (if any Notes were outstand ing) would violate any provision of this Agreement(and at the Closings the Company shall deliver to the Purchaser an officer's certificate certifying as to the Company's compliance with the conditions to completion of the transactions contemplated by this Agreement that are set forth therein shall have been satisfied in all respectsthis clause (i));
(ii) No judgment, injunction, decree or other legal restraint shall prohibit, or have at the effect of rendering unachievableFirst Closing, the consummation Company shall have executed a registra tion rights agreement in the form of Exhibit B hereto (the transactions contemplated by this "Registration Rights Agreement"); and
(iii) The Company shall have received the written opinion, of a nationally recognized investment banking firm and in a form which are acceptable to Company and the Manager, in their sole discretion, that the terms of the Company’s sale of the Securities under this Agreement are fair to shareholders from a financial point of view.
(b) The obligations of the Manager to cause the Investors to consummate the purchase of the Purchased Shares and the Warrants at a Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Company in Section 3 shall be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect set forth therein) would not result in a Material Adverse Change;
(ii) The Company shall have complied in all material respects with its obligations under this Agreement that are required to be complied with at or prior to the Closing;
(iii) Since since the date of this Agreement, Agreement there shall not have been no event, transaction, condition or change that has had or occurred an event which would reasonably be expected to have a Material Adverse Effect on the Company or the Bank;
(iv) The Company’s Board of Directors shall have formally approved the execution and delivery of this Agreement and the Warrant, and the transactions contemplated therein, including but not limited to the sales of the Securities;
(v) The Manager shall have completed its due diligence review, including but not limited to its review of the Bank’s assets and such other information and documents as the Manager may choose to examine or review, in its sole discretion, and the findings and results of such review shall be satisfactory to the Manager in its sole discretion;
(vi) The Company shall have delivered to the Manager a copy of resolutions duly adopted by the Boards or Directors of the Company and the Bank Board of Directors, and certified by their respective corporate secretaries, taking all corporate actions necessary such that, effective immediately upon the First Closing, the Company’s Board of Directors and the Bank’s Board of Directors will be reconstituted so that three persons designated by the Manager will be appointed to serve on each of the Company’s Board of Directors and the Bank’s Board of Directors until the respective next annual meetings of shareholders; provided however, that the Company shall not be required to appoint any such persons to either the Company’s or the Bank’s Board of Directors on the First Closing Date if and to the extent that, as of such date (1) the Manager has not designated any such persons or (2) any such person has not received any required regulatory approval, non-objection or waiver necessary to become a director of the Company or the Bank without a violation of application law;
(vii) The Company and the Board of Directors shall have taken all action necessary, including amending any agreements and plans and adopting resolutions, to exclude the transactions contemplated by this Agreement from the definition of a “change in control” for any applicable Company Significant Agreement including any employment agreement filed with the SEC pursuant to Item 601 of Regulation S-K;
(viii) The Company shall have paid to the Manager the fees and expenses as described defined in Section 9(o2.1 hereof);
(ix) The Company shall have complied with any written request from the Manager to prepare and file any and all applications, requests or filings to necessary to effect the Company’s redemption of its outstanding Fixed Rate Cumulative Perpetual Preferred Stock, Series D; and
(x) With respect the Second Closing only, the Company shall have satisfied and completed each of the TARP Redemption Conditions.
(c) The obligations of the Company to consummate the sale of the Securities at the Closing are subject to the fulfillment, prior to or on the applicable Closing Date, of the following additional conditions:
(i) The representations and warranties of the Investors in Section 4 shall be true and correct (without giving effect to any qualification as to materiality set forth therein) as of the date hereof and at and as of the Closing Date, except for representations and warranties made as of a specific date, which will be made as of such specified date, except, in each case, where the failure of such representations or warranties to be true and correct (without giving effect to any qualification as to materiality set forth therein) would not result in a Material Adverse Change; and
(ii) The Investors shall have complied in all material respects with its obligations hereunder that are required to be complied with at or prior to the Closing.
Appears in 1 contract