ABOVE AS OF SUCH DATE);
(III)
THE COMPANY SHALL HAVE RECEIVED PROCEEDS OF THE SALE OF THE
SHARES OF THE SECURITIES OF AN AGGREGATE AMOUNT NOT LESS THAN $150 MILLION
(WHICH INCLUDES THE PURCHASE PRICE), CONTEMPORANEOUSLY WITH THE CLOSING, FROM
THE INVESTOR AND OTHER INVESTORS ON SUBSTANTIALLY THE SAME TERMS, OF WHICH $130
(3) INCLUDED IN THE INVESTMENT AGREEMENT OF ONE OF THE INVESTORS.
4
MILLION WILL BE CONTRIBUTED TO THE COMPANY'S PRINCIPAL DEPOSITORY INSTITUTION
SUBSIDIARY; AND
(IV)
THE INVESTOR SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL
OBLIGATIONS REQUIRED TO BE PERFORMED BY IT AT OR PRIOR TO THE CLOSING UNDER THIS
AGREEMENT.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
Disclosure.
(A)
ON OR PRIOR TO THE DATE OF THIS AGREEMENT, EACH OF THE COMPANY AND
THE INVESTOR DELIVERED TO THE OTHER A SCHEDULE ("DISCLOSURE SCHEDULE") SETTING
FORTH, AMONG OTHER THINGS, ITEMS THE DISCLOSURE OF WHICH IS NECESSARY OR
APPROPRIATE EITHER IN RESPONSE TO AN EXPRESS DISCLOSURE REQUIREMENT CONTAINED IN
A PROVISION HEREOF OR AS AN EXCEPTION TO ONE OR MORE REPRESENTATIONS OR
WARRANTIES CONTAINED IN SECTION 2.2 WITH RESPECT TO THE COMPANY, OR IN
SECTION 2.2(FF) WITH RESPECT TO THE INVESTOR, OR TO ONE OR MORE OF ITS COVENANTS
CONTAINED IN ARTICLE III; PROVIDED, HOWEVER, THAT NOTWITHSTANDING ANYTHING IN
THIS AGREEMENT TO THE CONTRARY, THE MERE INCLUSION OF AN ITEM IN SUCH SCHEDULE
SHALL NOT BE DEEMED AN ADMISSION THAT SUCH ITEM REPRESENTS A MATERIAL EXCEPTION
OR MATERIAL FACT, EVENT, OR CIRCUMSTANCE OR THAT SUCH ITEM HAS HAD OR WOULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE COMPANY OR THE
INVESTOR, AS APPLICABLE.
(B)
"MATERIAL ADVERSE EFFECT" MEANS, WITH RESPECT TO THE INVESTOR,
ONLY CLAUSE (2) THAT FOLLOWS, OR, WITH RESPECT TO THE COMPANY, BOTH
CLAUSES (1) AND (2) THAT FOLLOW, ANY CIRCUMSTANCE, EVENT, CHANGE, DEVELOPMENT OR
EFFECT THAT, INDIVIDUALLY OR IN THE AGGREGATE (1) IS OR WOULD REASONABLY BE
EXPECTED TO BE MATERIAL AND ADVERSE TO THE FINANCIAL POSITION, RESULTS OF
OPERATIONS, BUSINESS OR CONDITION (FINANCIAL OR OTHERWISE) OF THE COMPANY AND
ITS SUBSIDIARIES TAKEN AS A WHOLE, OR (2) WOULD MATERIALLY IMPAIR THE ABILITY OF
EITHER THE INVESTOR OR THE COMPANY, RESPECTIVELY, TO PERFORM ITS RESPECTIVE
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE MATERIALLY THREATEN OR MATERIALLY
IMPEDE THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT;
PROVIDED, HOWEVER, THAT MATERIAL ADVERSE EFFECT, UNDER CLAUSE (1), SHALL NOT BE
DEEMED TO INCLUDE THE IMPACT OF (A) CHANGES, AFTER THE DATE OF THIS AGREEMENT,
IN THE U.S. GENERALLY ACCEPTED ACCOUNTING PRINCIPLES ("GAAP"), (B) CHANGES,
AFTER THE DATE HEREOF, IN APPLICABLE LAWS, RULES AND REGULATIONS OR
INTERPRETATIONS THEREOF BY ANY GOVERNMENTAL OR REGULATORY AUTHORITIES, AGENCIES,
COURTS, COMMISSIONS OR OTHER ENTITIES, WHETHER FEDERAL, STATE, LOCAL OR FOREIGN,
OR APPLICABLE SELF-REGULATORY ORGANIZATIONS (EACH, A "GOVERNMENTAL ENTITY"),
(C) ACTIONS OR OMISSIONS OF THE COMPANY EXPRESSLY REQUIRED BY THE TERMS OF THIS
AGREEMENT OR TAKEN WITH THE PRIOR WRITTEN CONSENT OF THE INVESTOR, (D) GENERAL
CHANGES IN THE ECONOMY OR THE INDUSTRIES IN WHICH THE COMPANY AND ITS