This excerpt taken from the FCVA 8-K filed Apr 7, 2009.
CONDITIONS TO THE OBLIGATIONS OF EVBS
The obligations of EVBS to consummate the Merger are subject to the fulfillment of each of the following conditions, unless waived as hereinafter provided for:
Section 8.1 Representations and Warranties. The representations and warranties of FCB set forth in this Agreement and in any certificate or document delivered pursuant hereto that are qualified by materiality shall be true and correct in all respects and such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of all times up to and including the Effective Time of the Merger as though made on and as of the Effective Time of the Merger except (i) to the extent such representations and warranties are by their express provisions made as of a specified date, (ii) for changes therein contemplated by this Agreement and (iii) for representations and warranties the inaccuracy of which relate to matters that, individually or in the aggregate, do not represent a Material Adverse Effect with respect to FCB or materially adversely affect the Merger and the other transactions contemplated by this Agreement.
Section 8.2 Performance of Obligations. FCB and each of its Subsidiaries shall have performed in all material respects all covenants, obligations and agreements required to be performed by it under this Agreement prior to the Effective Time of the Merger.
Section 8.3 Certificate Representing Satisfaction of Conditions. FCB shall have delivered to EVBS a certificate of the Chief Executive Officer of FCB dated as of the Closing Date as to the satisfaction of the matters described in Sections 8.1 and 8.2 hereof, and such certificate shall be deemed to constitute additional representations, warranties, covenants, and agreements of FCB under Article 3 of this Agreement.
Section 8.4 Opinion of Counsel. EVBS shall have received the opinion of Cantor Arkema, P.C., counsel to FCB, dated the Effective Time to the effect set forth in Exhibit 8.4 hereof.
Section 8.5 Consents Under Agreements. FCB and each of its Subsidiaries shall have obtained the consent or approval of any Person whether or not identified in Disclosure Schedule 3.6(b) or 3.7 whose consent or approval shall be required in order to permit the succession by the Surviving Corporation to any obligation, right or interest of FCB or any of its Subsidiaries under any loan or credit agreement, note, mortgage, indenture, lease, license, or other agreement or instrument.
Section 8.6 Outstanding Shares of FCB. EVBS and FCB shall have agreed on the total number of FCB Shares and FCB Series A Preferred Shares outstanding and the total number of FCB Shares covered by any option, warrant, commitment, restricted stock grant, or other right or instrument to purchase or acquire FCB Shares or FCB Series A Preferred Shares that are outstanding as of the Effective Time of the Merger, including any securities or rights convertible into or exchangeable for FCB Shares or FCB Series A Preferred Shares.
Section 8.7 Tax Opinion. EVBS shall have received an opinion of Williams Mullen, in form and substance reasonably satisfactory to EVBS, on or before the date on which the Proxy Statement of EVBS is to be mailed to the EVBS shareholders, to the effect, among others, that the Merger will constitute a reorganization within the meaning of Section 368 of the Code. In rendering its opinion, Williams Mullen may require and rely upon representations outlined in letters from EVBS and others.
Section 8.8 Fairness Opinion. The Board of Directors of EVBS shall have received an opinion from Keefe Bruyette & Woods dated as of the date that the EVBS Board of Directors approves this Agreement stating that the Merger Consideration is fair, from a financial point of view, to EVBS.
Section 8.9 Assertion of Appraisal Rights. No holder of FCB Series A Preferred Shares shall have asserted appraisal rights under Section 13.1-730 of the Code of Virginia, as amended.
Section 8.10 Additional Capital. Consistent with and pursuant to that certain letter from the Department of the Treasury dated March 3, 2009 set forth on Schedule 8.10, FCB shall have closed its transaction with the United States Treasury (prior to the Effective Time) under EESAs Troubled Asset Relief Program Capital Purchase Program, for a minimum subscription of at least $10,900,000.