Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be subject to the satisfaction (or waiver), at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement. (ii) The Initial Closing shall have occurred. (iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory to such Buyer. (iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent. (v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G. (vii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H. (viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects). (ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing Date. (x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Comscore, Inc.)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be subject to the satisfaction (or waiver), at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each obligations of the Guarantors shall have duly executed and delivered Company hereunder in connection with the Additional Closing are subject to such Buyer each of the following documents to which it is a party: (A) each of conditions being met:
i. the Transaction Documents and (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer Company shall have received the opinion of ▇▇▇▇▇ Day, Nasdaq Stockholder Approval;
ii. the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory to such Buyer.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company shall be true and correct accuracy in all material respects (except for those or, to the extent representations and or warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualificationrespects) as of the date when made and as of on the Additional Closing Date as though made at that time (except for of the representations and warranties that speak of the Purchasers contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be true and correct accurate in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such specified date);
iii. Such Buyer shall have received a certificateall obligations, executed by the principal executive officer or the principal financial officer covenants and agreements of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions each Purchaser required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors performed at or prior to the Additional Closing Date shall have been performed; and
iv. the delivery by each Purchaser of the items set forth in Section 2.3(b)(ii) of this Agreement.
(except for those covenantsii) The respective obligations of the Purchasers hereunder in connection with the Additional Closing are subject to the following conditions being met, agreements provided, however that such conditions may be waived, modified or conditions as to which amended by the Company is required to perform, satisfy or comply in all material respects, as to which Purchaser:
i. the Company shall have performed, satisfied or complied received the Nasdaq Stockholder Approval;
ii. the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects).
) when made and on the Additional Closing Date of the representations and warranties of the Company contained herein (ix) The Company shall have delivered to unless such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding representation or warranty is as of a specific date within five therein in which case they shall be accurate in all material respects (5or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) Business Days as of such date);
iii. all obligations, covenants and agreements of the Company required to be performed at or prior to the Additional Closing Date shall have been performed;
iv. the delivery by the Company of the items set forth in Section 2.3(b)(i) of this Agreement;
v. there shall have been no Material Adverse Effect with respect to the Company;
vi. no Event of Default (as defined in the Notes) shall have occurred or be continuing; and
vii. from the date hereof to the Additional Closing Date.
(x) The Company , trading in the Common Stock shall not have obtained all governmental, regulatory been suspended by the Commission or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions principal Trading Market and, at any time prior to the Additional Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on Company letterhead duly executed securities whose trades are reported by an authorized officer such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the Companyreasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Additional Closing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Datavault AI Inc.), Securities Purchase Agreement (Datavault AI Inc.)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall be subject to the satisfaction (or waiver)permitted, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing during the Company with prior written notice thereof:
sixty (i60) The Company day period following the First Tranche Closing, to offer and each of sell 2015 Notes equal to the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing Remaining Financing Amount pursuant to this Agreement.
Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Dayeach such holder, an “Additional Lender” and collectively, the Company’s outside counsel, dated “Additional Lenders”). The closings of such sales shall be referred to herein as of the “Additional Closing Date, in form Closings” and substance reasonably satisfactory to such Buyer.
(iv) The Company shall have delivered to such Buyer occur on a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing date determined by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each Additional Lender, provided such date is prior to the end of the Guarantors in such entity’s jurisdiction of formation issued by sixty (60) day period after the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect First Tranche Closing. All sales made at the Additional ClosingClosings (a) shall be made on the terms and conditions set forth in this Agreement, such certificate substantially in (b) the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company set forth in Section 3 hereof shall be true speak as of the First Tranche Closing and correct in all material respects (except for those c) the representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and Additional Lenders in Section 5 hereof shall speak as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as Closing. The Schedule of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as Lenders may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with amended by the Company or without the Guarantors at or prior consent of the Lenders to include any Additional Lenders in the Additional Closing Date (except for those covenants, Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP or conditions at such other place and at such time as to which the Company is required and each Additional Lender may agree in writing. Any notes sold pursuant to performthis Section 2.2 shall be deemed to be “2015 Notes”, satisfy or comply in for all material respects, as purposes under this Agreement and any Additional Lenders thereof shall be deemed to which the Company shall have performed, satisfied or complied in be “Lenders” for all material respects)purposes under this Agreement.
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing Date.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.
Appears in 2 contracts
Sources: Subordination Agreement, Subordination Agreement (Ellipse Technologies Inc)
Additional Closing. i. The obligation obligations of each Buyer hereunder KiOR to sell the Notes, and of the Purchasers to purchase Additional the Notes at any Additional Closing shall be are subject to the satisfaction (or waiver)fulfillment, at on or before such each Additional Closing DateClosing, of each of the following conditions:
(a) The notifications of the Purchasers and KiOR pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated; and
(b) Consummation of the transactions contemplated hereby or by the Transaction Documents shall not have been restrained, enjoined or otherwise prohibited or made illegal by, or conditioned upon the receipt of any approvals or consents from Governmental Authorities under, any applicable law.
ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before any Additional Closing, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be unless otherwise waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereofKiOR:
(ia) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the applicable amount set forth opposite such Purchaser’s name under the heading “Additional Closing” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the Additional Closing. The Company Additional Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Purchase Price indicated thereon; and
(b) each of the Guarantors representations and warranties of each Purchaser in this Agreement and the other Transaction Documents shall have duly executed be true and delivered correct on the date of the Additional Closing, and the occurrence of such Additional Closing shall be deemed to be a representation and warranty of each Purchaser that such Buyer representations and warranties are true and correct.
iii. The obligations of each Purchaser to purchase the Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following documents to which it is a party: conditions, unless otherwise waived by such Purchaser:
(A) each of the Transaction Documents and (Ba) the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii) The Initial Closing Required Purchasers shall have occurred.
(iii) Such Buyer shall have received determined that the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory to such Buyer.
(iv) The Company shall have delivered satisfied the applicable Milestone (as determined in the sole discretion of (and to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by satisfaction of) the Company’s transfer agent.Required Purchasers);
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (ib) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except for those that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality “materiality” or “Material Adverse Effect” in the text thereof) on and as of such Additional Closing, which and no Default or Event of Default shall have occurred and be true and correct in all respects subject to such qualification) continuing as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.Closing; and
(viiic) The the Company shall have performed, satisfied performed and complied in with all respects with the covenants, agreements agreements, obligations and conditions contained in this Agreement that are required by the Transaction Documents to be performed, satisfied performed or complied with by the Company on or the Guarantors at or prior to the before such Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects)Closing.
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing Date.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.
Appears in 2 contracts
Sources: Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc), Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc)
Additional Closing. The obligation of each Buyer the Investor hereunder to purchase the Additional Notes at any the Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s the Investor's sole benefit and may be waived by such Buyer the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each of the Guarantors its Subsidiaries, if any, shall have duly executed and delivered to such Buyer the Investor each of the following documents to which it is a party: (A) each of the Transaction Documents and Documents, (B) the Additional Notes Cash Note (allocated in such principal amounts as such Buyer the Investor shall request), ) being purchased by such Buyer the Investor at the Additional Closing pursuant to this Agreement and (C) the Additional Exchange Note (allocated in such principal amounts as the Investor shall request) being purchased by the Investor at the Additional Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory to such Buyer.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by ) and the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects).
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing Date.
(xiii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xiiv) Such Buyer The Collateral Agent shall have received certified copies of request for copies of information on Form UCC‑11, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral, and the results of searches for any tax lien and judgment lien filed against such person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent, shall not show any such liens.
(v) The Collateral Agent shall have received the Company’s wire instructions on Company letterhead Security Agreement, duly executed by an authorized officer the Company, together with (A) the original stock certificates representing all of the equity interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement.
(vi) The Collateral Agent shall have received the Subordination Agreements, duly executed by all parties thereto, and such Subordination Agreements shall remain in full force and effect.
(vii) The Company shall have received the Waiver duly executed and delivered by the Existing Required Holders, and such Waiver shall remain in full force and effect.
(viii) The Company shall have delivered to the Investor the Forbearance Agreement, duly executed by the Company, and such Forbearance Agreement shall remain in full force and effect.
(ix) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Great Basin Scientific, Inc.)
Additional Closing. The obligation of each Buyer hereunder to purchase the Additional Notes Common Shares and the related Additional Warrants at any the Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (Ai) each of the Transaction Documents and (Bii) the Additional Notes Common Shares (allocated in such principal amounts as such Buyer shall request), ) and the related Additional Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received (A) the opinion of ▇▇▇▇▇▇ Day▇. ▇▇▇▇▇▇▇▇▇, P.C., the Company’s outside U.S. counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit C attached hereto and (B) the opinion of Harneys Westwood & Riegels, the Company’s British Virgin Islands outside counsel, dated as of the Additional Closing Date, in a form and substance reasonably satisfactory acceptable to the Buyers.
(iii) The Company shall have delivered to such BuyerBuyer a certificate evidencing the incorporation and good standing of the Company and each of its United States operating Subsidiaries in such corporation’s jurisdiction of incorporation issued by the Secretary of State (or comparable office) of such jurisdiction of incorporation as of a date within ten (10) days of the Additional Closing Date.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by certificate evidencing the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer qualification as a certificate evidencing the formation foreign corporation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdictioneach jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) calendar days of the Additional Closing Date.
(v) The Common Stock (I) shall be listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(vi) The Company shall have delivered to such Buyer a certified copy of the Memorandum of Association as certified by the Secretary of State (or comparable office) of the jurisdiction of incorporation within 10 days of the Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each Board of the Guarantors’ respective boards of directors (or other applicable governing body)Directors in a form reasonably acceptable to such Buyer, (ii) the certificate Memorandum of incorporation of the Company and each of the Guarantors (or other applicable charter document) Association and (iii) the bylaws Articles of the Company and each of the Guarantors (or limited liability company agreement or other applicable document)Association, each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.D.
(viiviii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date date, which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by ) and the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Additional Closing Date (except for those covenantsDate. Such Buyer shall have received a certificate, agreements or conditions executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to which such other matters as may be reasonably requested by such Buyer in the Company is required to perform, satisfy or comply in all material respects, form attached hereto as to which the Company shall have performed, satisfied or complied in all material respects).Exhibit E.
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days days of the Additional Closing Date.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the SecuritiesCommon Shares and the Warrants.
(xi) Such Buyer The Company shall have received delivered to such Buyer such other documents relating to the Company’s wire instructions on Company letterhead duly executed transactions contemplated by an authorized officer of the Companythis Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (China Technology Development Group Corp)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes the Preferred Shares at any the Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes Preferred Shares (allocated in such principal amounts numbers as is set forth across from such Buyer shall request), Buyer’s name in column (4) of the Schedule of Buyers) being purchased by such Buyer at the Additional Closing pursuant to this Agreement.
(ii) The Initial Closing Company shall have occurreddelivered to such Buyer the Excess Note Amount, if any, of the Notes of such Buyer being exchanged in accordance herewith.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇▇▇▇▇ Day▇▇▇▇▇▇▇, P.A. the Company’s outside counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F-3 attached hereto, and substance reasonably satisfactory to such Buyerthe opinion of Akerman Senterfitt, in substantially the form of Exhibit F-4 attached hereto.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors its Material Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or equivalent) of such jurisdiction of formation as of a date within ten (10) days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of such jurisdictioneach jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) calendar days of the Additional Closing Date.
(vivii) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten (10) days of the Additional Closing Date.
(viii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards board of directors (or other applicable governing body)in a form reasonably acceptable to such Buyer, (ii) the certificate Articles of incorporation of the Company and each of the Guarantors (or other applicable charter document) Incorporation and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document)Bylaws, each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(viiix) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true date) and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Additional Closing Date (except for those covenantsDate. Such Buyer shall have received a certificate, agreements or conditions executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to which such other matters as may be reasonably requested by such Buyer in the Company is required to perform, satisfy or comply in all material respects, form attached hereto as to which the Company shall have performed, satisfied or complied in all material respects).Exhibit H.
(ixx) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days days of the Additional Closing Date.
(xxi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall proceedings regarding such suspension by the SEC or the Principal Market have been threatened, as of the Additional Closing Date, either (A) by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market, other than with respect to those issues set forth on the Company’s Current Report on Form 8-K, dated as of January 25, 2006.
(xii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xixiii) Such Buyer The Certificate of Designations in the form attached hereto as Exhibit B shall have received been filed with the Company’s wire instructions on Company letterhead duly executed by an authorized officer Secretary of State of the CompanyState of Florida and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended.
(xiv) The Shareholder Approval shall have been obtained and shall be effective under applicable rules and regulations.
(xv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
(xvi) No event or events shall have occurred since the date hereof that, taken individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Securities Purchase Agreement (Devcon International Corp)
Additional Closing. The obligation of each Buyer the Company hereunder to purchase Additional issue and sell the Notes to any Buyer at any Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company’s sole benefit and may be waived by such Buyer the Company at any time in its sole discretion by providing the Company each such Buyer with prior written notice thereof:
(i) The Company and Such Buyer shall have executed each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents Transaction Documents to which it is a party: (A) each of party and delivered the Transaction Documents and (B) same to the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this AgreementCompany.
(ii) The Initial Closing Company shall have occurredreceived the Stockholder Approval.
(iii) Such Buyer shall have delivered to the Company its applicable Additional Purchase Price (less the amounts withheld pursuant to Section 4(g)) for the Notes being purchased by such Buyer at the applicable Additional Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company, and the Company shall have received the opinion of ▇▇▇▇▇ Day, aggregate Additional Purchase Price (less the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory amounts withheld pursuant to such BuyerSection 4(g)).
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company such Buyer shall be true and correct in all material respects (except for those such representations and warranties that are qualified by materiality or Buyer Material Adverse Effect, which shall be are true and correct in all respects subject to such qualificationrespects) as of the date when made and as of the applicable Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents this Agreement to be performed, satisfied or complied with by the Company or the Guarantors such Buyer at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects).
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the applicable Additional Closing Date.
(xv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for consummate the sale of Approved Investment giving rise to the Securitiesapplicable Additional Closing.
(xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Acacia Research Corp)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be subject to the satisfaction (or waiver), at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each obligations of the Guarantors Company hereunder in connection with the Additional Closing are subject to the following conditions being met:
i. The Merger Agreement shall have been duly executed and delivered executed;
ii. the accuracy in all material respects (or, to such Buyer each the extent representations or warranties are qualified by materiality, in all respects) on the Additional Closing Date of the following documents to which it is a party: (A) each representations and warranties of the Transaction Documents Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) as of such date);
iii. all obligations, covenants and (B) agreements of each Purchaser required to be performed at or prior to the Additional Notes (allocated Closing Date shall have been performed; and
iv. the delivery by each Purchaser of the items set forth in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to Section 2.3(b)(ii) of this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received respective obligations of the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of Purchasers hereunder in connection with the Additional Closing Dateare subject to the following conditions being met, in form and substance reasonably satisfactory to provided, however that such Buyer.conditions may be waived, modified or amended by the Purchaser:
(iv) i. The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions Merger Agreement shall have been delivered to and acknowledged in writing by duly executed;
ii. the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company shall be true and correct accuracy in all material respects (except for those or, to the extent representations and or warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualificationrespects) as of the date when made and as of on the Additional Closing Date as though made at that time (except for of the representations and warranties that speak of the Company contained herein (unless as of a specific date therein in which case they shall be true and correct accurate in all material respects or, to the extent representations or warranties are qualified by materiality or Material Adverse Effects, in all respects) as of such specified date);
iii. Such Buyer shall have received a certificateall obligations, executed by the principal executive officer or the principal financial officer covenants and agreements of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors performed at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which shall have been performed;
iv. the delivery by the Company is required to perform, satisfy or comply of the items set forth in all material respects, as to which the Company Section 2.3(b)(i) of this Agreement;
v. there shall have performed, satisfied or complied in all material respects).been no Material Adverse Effect with respect to the Company; and
(ix) The Company shall have delivered to such Buyer a letter vi. from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of hereof to the Additional Closing Date.
(x) The Company , trading in the Common Stock shall not have obtained all governmental, regulatory been suspended by the Commission or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions principal Trading Market and, at any time prior to the Additional Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on Company letterhead duly executed securities whose trades are reported by an authorized officer such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the Companyreasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Additional Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Blackboxstocks Inc.)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of (x) Dechert LLP in a form reasonably acceptable to such Buyer and (y) ▇▇▇▇▇▇▇▇▇ Day▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ in the form of Exhibit G-4 attached hereto, each the Company’s outside counselcounsels, or such other counsels reasonably acceptable to the Designee, dated as of the applicable Additional Closing Date, in form and substance reasonably satisfactory to such Buyer.
(iviii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(viv) The Company shall have delivered to such Buyer a certificate certificates evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days prior to the applicable Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company’s and each of the Guarantors’ qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and the Guarantors conduct business, as of a date within ten (10) calendar days prior to the applicable Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of the Guarantors as certified by the Secretary of State (or comparable office) of the jurisdiction of formation of the Company and each of its Subsidiaries within ten (10) calendar days prior to the applicable Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the applicable Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards Board of directors (or other applicable governing body)Directors in a form reasonably acceptable to such Buyer, (ii) the certificate Certificate of incorporation Incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws Bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document)Guarantors, each as in effect at the applicable Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.K.
(viiviii) The representations and warranties of the Company shall be true and correct in all material respects (except for those such representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be are true and correct in all respects subject to such qualificationrespects) as of the date when made and as of the applicable Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by ) and the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the applicable Additional Closing Date (except for those covenantsDate. Such Buyer shall have received a certificate, agreements or conditions executed by the Chief Intellectual Property Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to which such other matters as may be reasonably requested by such Buyer in the Company is required to perform, satisfy or comply in all material respects, form attached hereto as to which the Company shall have performed, satisfied or complied in all material respects).Exhibit L.
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of calendar days prior to the applicable Additional Closing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the applicable Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the applicable Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xixii) Such Buyer The Initial Closing shall have received been completed.
(xiii) The Stockholder Approval shall have been obtained.
(xiv) The Company shall have delivered to such Buyer the Company’s wire instructions on Company Company’s letterhead duly executed by an authorized executive officer of the Company for the payment of the applicable Additional Purchase Price.
(xv) The Collateral Agent shall have received an account control agreement, in form and substance satisfactory to the Collateral Agent, duly executed by the Company and/or Guarantor, as applicable, and such bank or financial institution (as applicable), or enter into other arrangements, as required under Section 5(i) of the Security Agreement, in form and substance satisfactory to the Collateral Agent, in each case, subject to the terms of the Security Agreement.
(xvi) The Collateral Agent shall have received (A) evidence satisfactory to the Collateral Agent of form UCC-1 financing statements for each appropriate jurisdiction as necessary pursuant to the terms of the Security Agreement and (B) the results of customary searches (including comparable searches in any jurisdiction outside the United States) for UCC financing statements, tax liens and judgment liens filed against the Company (solely for the initial issuance of the Notes) or any of the Guarantors or any property of the foregoing, which results shall not show any such liens (other than Permitted Liens acceptable to the Collateral Agent and Intellectual Property Rights that occur in the ordinary course of the Company’s and Guarantors’ business as a purchaser, seller and enforcer of Intellectual Property Rights ).
(xvii) The Collateral Agent shall have received the Security Agreement, duly executed by the Company and each of the Guarantors, together with (A) stock certificates and promissory notes required to be pledged pursuant to the Security Agreement, accompanied by undated stock powers and allonges, respectively, in each case, subject to the terms of the Security Agreement, and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement.
(xviii) The Company shall have delivered to the Buyers a perfection certificate, duly completed and executed by the Company and each of its Subsidiaries (the “Perfection Certificate”).
(xix) The Company and the Subsidiaries shall have delivered to such Buyer and/or the Collateral Agent such other documents relating to the transactions contemplated by this Agreement as such Buyer, the Collateral Agent or their respective counsels may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Acacia Research Corp)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be subject to the satisfaction (or waiver), at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each obligations of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes (allocated Company hereunder in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of connection with the Additional Closing Date, in form and substance reasonably satisfactory are subject to such Buyer.the following conditions being met:
(iv) The Company shall have delivered to such Buyer a copy of i. the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company shall be true and correct accuracy in all material respects (except for those or, to the extent representations and or warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualificationrespects) as of the date when made and as of on the Additional Closing Date as though made at that time (except for of the representations and warranties that speak of the Purchasers contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be true and correct accurate in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such specified date);
ii. Such Buyer shall have received a certificateall obligations, executed by the principal executive officer or the principal financial officer covenants and agreements of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions each Purchaser required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors performed at or prior to the Additional Closing Date shall have been performed; and
iii. the delivery by each Purchaser of the items set forth in Section 2.4(c)(ii) of this Agreement.
(except for those covenantsii) The respective obligations of the Purchasers hereunder in connection with the Additional Closing are subject to the following conditions being met, agreements provided, however that such conditions may be waived, modified or conditions as to which amended by the Company is required to perform, satisfy or comply Purchaser:
i. the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects, as to which ) when made and on the Additional Closing Date of the representations and warranties of the Company contained herein (unless such representation or warranty is as of a specific date therein in which case they shall have performed, satisfied or complied be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date).;
(ix) The ii. all obligations, covenants and agreements of the Company required to be performed at or prior to the Additional Closing Date shall have delivered been performed;
iii. the delivery by the Company of the items set forth in Section 2.4(c)(i) of this Agreement;
iv. there shall have been no Material Adverse Effect with respect to such Buyer a letter the Company;
v. no Event of Default (as defined in the Notes) shall have occurred or be continuing; and
vi. from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of hereof to the Additional Closing Date.
(x) The Company , trading in the Ordinary Shares shall not have obtained all governmental, regulatory been suspended by the Commission or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions principal Trading Market and, at any time prior to the Additional Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on Company letterhead duly executed securities whose trades are reported by an authorized officer such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the Companyreasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Additional Closing.
Appears in 1 contract
Additional Closing. The obligation of the Company hereunder to issue and sell the Additional Preferred Shares and the related Additional Warrants to each Buyer hereunder to purchase Additional Notes at any the Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s the Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretion by providing the Company each Buyer with prior written notice thereof:
(i) The Company and Such Buyer shall have executed each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents Transaction Documents to which it is a party: party and delivered the same to the Company.
(Aii) Such Buyer and each of other Buyer shall have delivered to the Transaction Documents and (B) Company the Additional Notes (allocated in such principal amounts as such Buyer shall request), Purchase Price for the Additional Preferred Shares and the related Additional Warrants being purchased by such Buyer at the Additional Closing by wire transfer of immediately available funds pursuant to this Agreement.
(ii) The Initial Closing shall have occurredthe wire instructions provided by the Company.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory to such Buyer.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company such Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualificationrespects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date date, which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect ) and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors such Buyer at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects).
(ix) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing Date.
(xiv) The Company No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have obtained all governmentalbeen enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory or third party consents and approvals, if any, necessary for organization having authority over the sale matters contemplated hereby which prohibits the consummation of any of the Securitiestransactions contemplated by this Agreement.
(xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Oxygen Biotherapeutics, Inc.)
Additional Closing. The obligation of each Buyer hereunder to purchase the Additional Notes Preferred Shares and the related Additional Warrants at any each Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s 's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes Preferred Shares (allocated in such principal amounts numbers as is set forth across from such Buyer shall request), Buyer's name in column (3) of the Schedule of Buyers and the related Warrants (in such numbers as is set forth across from such Buyer's name in column (4) of the Schedule of Buyers) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ DayGuzov Ofsink, LLC, the Company’s 's outside counsel, dated as of the Additional Closing Date, in substantially the form and substance reasonably satisfactory to such Buyerof Exhibit E attached hereto.
(iviii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company’s 's transfer agent.
(viv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors its Subsidiaries in each such entity’s 's jurisdiction of formation issued by the Secretary of State (or equivalent) of such jurisdiction of formation as of a date within ten (10) days of the applicable Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of such jurisdictioneach jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) calendar 10 days of the applicable Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the applicable Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the applicable Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards 's board of directors (or other applicable governing body)in a form reasonably acceptable to such Buyer, (ii) the certificate Certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) Incorporation and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document)Bylaws, each as in effect at the applicable Additional ClosingClosing Date, such certificate substantially in the form attached hereto as Exhibit G.F.
(viiviii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the applicable Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true date) and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the applicable Additional Closing Date (except for those covenantsDate. Such Buyer shall have received a certificate, agreements or conditions executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to which such other matters as may be reasonably requested by such Buyer in the Company is required to perform, satisfy or comply in all material respects, form attached hereto as to which the Company shall have performed, satisfied or complied in all material respects).Exhibit G.
(ix) The Company shall have delivered to such Buyer a letter from the Company’s 's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days days of the applicable Additional Closing Date.
(x) The Company Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have obtained all governmentalbeen suspended, regulatory or third party consents and approvals, if any, necessary for the sale as of the SecuritiesAdditional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(xi) Such Buyer The Company shall have received delivered to such Buyer a copy of the Amendment to the Credit Agreement between the Company and ▇▇▇▇▇ Fargo in which ▇▇▇▇▇ Fargo shall agree to exempt in addition to the Initial Exemption $1,000,000 of the proceeds to the Company from the sale of the Preferred Shares and the Warrants from the scope of the liens on the Company's assets held by ▇▇▇▇▇ Fargo; provided, however, that such a separate Amendment to the Credit Agreement shall not be required if the Amendment to Credit Agreement delivered pursuant to Section 7(a)(xvii) shall have exempted an aggregate of $4,000,000 of the proceeds to the Company from sales of Preferred Shares and Warrants made at the Initial Closing and the Additional Closing collectively from the scope of the liens on the Company’s wire instructions on assets held by ▇▇▇▇▇ Fargo.
(xii) The Certificate of Designations shall be in full force and effect, enforceable against the Company letterhead duly executed in accordance with its terms and shall not have been amended.
(xiii) No event or events shall have occurred since the date hereof that, taken individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by an authorized officer of the Companythis Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Interpharm Holdings Inc)
Additional Closing. The obligation of each Buyer the Company hereunder to purchase issue and sell the Additional Notes to the Investor at any the Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s the Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretion by providing the Company Investor with prior written notice thereof:
(i) The Company and Investor shall have executed each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents Transaction Documents to which it is a party: (A) each of party and delivered the Transaction Documents and (B) same to the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this AgreementCompany.
(ii) The Initial Closing Investor shall have occurreddelivered for the Additional Notes being purchased by the Investor at the Additional Closing its Additional Cash Purchase Price to the Company (less the amounts withheld pursuant to Section 4(f)), by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.
(iii) Such Buyer The Collateral Agent will have duly executed the Subordination Agreements, and such Subordination Agreements shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of the Additional Closing Date, remain in form full force and substance reasonably satisfactory to such Buyereffect.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company Investor shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by and the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents this Agreement to be performed, satisfied or complied with by the Company or the Guarantors Investor at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects)Date.
(ixv) The Company shall have received the Waiver duly executed and delivered to by the Existing Required Holders, and such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing DateWaiver shall remain in full force and effect.
(xvi) The Company Investor shall have obtained all governmentaldelivered to the Company the Forbearance Agreement, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the CompanyInvestor, and such Forbearance Agreement shall remain in full force and effect.
Appears in 1 contract
Sources: Securities Purchase Agreement (Great Basin Scientific, Inc.)
Additional Closing. The obligation of the Company hereunder to issue and sell the Preferred Shares to each Buyer hereunder to purchase Additional Notes at any the Additional Closing shall be is subject to the satisfaction (or waiver)satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company’s sole benefit and may be waived by such Buyer the Company at any time in its sole discretion by providing the Company each Buyer with prior written notice thereof:
(i) The Company Such Buyer and each of the Guarantors other Buyer shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) Company the Additional Purchase Price less (1) in the case of Steelhead and Castlerigg, the amounts withheld pursuant to Section 4(g) or (2) such Buyer’s pro rata share of any amount outstanding under any outstanding Notes (allocated including any outstanding principal, accrued and unpaid interest, fees, late charges and other amounts due in such principal amounts as such Buyer shall requestrespect thereof), ) for the Preferred Shares being purchased by such Buyer at the Additional Closing by wire transfer of immediately available funds pursuant to this Agreementthe wire instructions provided by the Company.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of the Additional Closing Date, in form and substance reasonably satisfactory to such Buyer.
(iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company such Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date). Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents this Agreement to be performed, satisfied or complied with by the Company or the Guarantors such Buyer at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects)Date.
(ixiii) The Shareholder Approval shall have been obtained and shall be effective under applicable rules and regulations.
(iv) The Company, prior to the Additional Closing, shall have consummated the transactions contemplated by the Purchase Agreement, dated as of November 9, 2005 by and among the Company and Guardian International, Inc. (“Guardian Purchase Agreement”) in the form attached hereto as Exhibit I.
(v) The Buyer shall have delivered to the Company such Buyer a letter from other documents relating to the Company’s transfer agent certifying transactions contemplated by this Agreement as the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Additional Closing DateCompany or its counsel may reasonably request.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Devcon International Corp)
Additional Closing. The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be subject to the satisfaction (or waiver), at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company and each obligations of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents and (B) the Additional Notes (allocated Company hereunder in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii) The Initial Closing shall have occurred.
(iii) Such Buyer shall have received the opinion of ▇▇▇▇▇ Day, the Company’s outside counsel, dated as of connection with the Additional Closing Date, in form and substance reasonably satisfactory are subject to such Buyer.the following conditions being met:
(iv) The Company shall have delivered to such Buyer a copy of i. the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closing, such certificate substantially in the form attached hereto as Exhibit G.
(vii) The representations and warranties of the Company shall be true and correct accuracy in all material respects (except for those or, to the extent representations and or warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects subject to such qualificationrespects) as of the date when made and as of on the Additional Closing Date as though made at that time (except for of the representations and warranties that speak of the Purchasers contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be true and correct accurate in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such specified date);
ii. Such Buyer shall have received a certificateall obligations, executed by the principal executive officer or the principal financial officer covenants and agreements of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H.
(viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions each Purchaser required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors performed at or prior to the Additional Closing Date shall have been performed; and
iii. the delivery by each Purchaser of the items set forth in Section 2.3(b)(ii) of this Agreement.
(except for those covenantsii) The respective obligations of the Purchasers hereunder in connection with the Additional Closing are subject to the following conditions being met, agreements provided, however that such conditions may be waived, modified or conditions as to which amended by the Company is required to perform, satisfy or comply Purchaser:
i. the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects, as to which ) when made and on the Additional Closing Date of the representations and warranties of the Company contained herein (unless such representation or warranty is as of a specific date therein in which case they shall have performed, satisfied or complied be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date).;
(ix) The ii. all obligations, covenants and agreements of the Company required to be performed at or prior to the Additional Closing Date shall have delivered been performed;
iii. the delivery by the Company of the items set forth in Section 2.3(b)(i) of this Agreement;
iv. there shall have been no Material Adverse Effect with respect to such Buyer a letter the Company;
v. no Event of Default (as defined in the Notes) shall have occurred or be continuing; and
vi. from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of hereof to the Additional Closing Date.
(x) The Company , trading in the Ordinary Shares shall not have obtained all governmental, regulatory been suspended by the Commission or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) Such Buyer shall have received the Company’s wire instructions principal Trading Market and, at any time prior to the Additional Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on Company letterhead duly executed securities whose trades are reported by an authorized officer such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the Companyreasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Additional Closing.
Appears in 1 contract