Conditions Precedent to the Right of the Company. to Deliver an ------------------------------------------------------------------ Advance Notice and the Obligation of the Investor to Purchase Shares of Common -------------------------------------------------------------------------------- Stock. The right of the Company to deliver an Advance Notice and the obligation ----- of the Investor hereunder to acquire and pay for shares of the Company's Common Stock incident to a Closing is subject to the fulfillment by the Company, on (i) the date of delivery of such Advance Notice and (ii) the applicable Advance Date (each a "Condition Satisfaction Date"), of each of the following conditions: ----------------------------- (a) Registration of the Common Stock with the SEC. The Company shall have --------------------------------------------- filed with the SEC a Registration Statement with respect to the resale of the Registrable Securities in accordance with the terms of the Registration Rights Agreement. As set forth in the Registration Rights Agreement, the Registration Statement shall have previously become effective and shall remain effective on each Condition Satisfaction Date and (i) neither the Company nor the Investor shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have been addressed and the Investor is reasonably satisfied that the SEC no longer is considering or intends to take such action), and (ii) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall exist. The Registration Statement must have been declared effective by the SEC prior to the first Advance Notice Date.
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Conditions Precedent to the Right of the Company. to Deliver an ------------------------------------------------------------------ Advance Notice and the Obligation of the Investor to Purchase Shares of Common -------------------------------------------------------------------------------- StockTO DELIVER A DRAW DOWN NOTICE. The right of the Company to deliver an Advance a Draw Down Notice and the obligation ----- of the Investor hereunder to acquire and pay for shares of the Company's Common Stock incident to a Closing is subject to the fulfillment by the Companysatisfaction, on (i) the date of delivery of such Advance Notice and (ii) the applicable Advance Date (each a "Condition Satisfaction Date")Draw Down Notice, of each of the following conditions: -----------------------------:
(a) Effective Registration of the Common Stock with the SEC. The Company shall have --------------------------------------------- filed with the SEC a Registration Statement with respect to the resale of the Registrable Securities in accordance with the terms of the Registration Rights Agreement. Statement.
(I) As set forth in the Registration Rights Agreement, the Registration Statement shall have previously become been declared effective and shall remain effective on each Condition Satisfaction Date and sales of all of the Registrable Securities (including all of the Draw Down Shares issued with respect to all prior Draw Downs and all of the Draw Down Shares expected to be issued in connection with the Draw Down specified by the current Draw Down Notice (assuming for such purpose that the Purchase Price applicable to such Draw Down is the Floor Price)) may be made by the Investor thereunder and (i) neither the Company nor the Investor shall have received notice that the SEC Commission has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC Commission otherwise has suspended or withdrawn the effectiveness of the Registration StatementStatement either, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have been addressed and the Investor is reasonably satisfied that the SEC no longer is considering or intends to take such action)so, and (ii) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall exist. exist and (iii) no event specified in Section 5.13 shall have occurred and be continuing.
(II) The Company shall not have failed to obtain effectiveness of the Registration Statement must within 180 days from the Closing Date, and shall not have failed to obtain the effectiveness of any additional Registration Statement required to be filed pursuant to the Registration Rights Agreement within ninety (90) days after the occurrence of the event that requires such filing, and no such Registration Statement, after its initial effectiveness, shall have lapsed in effect such that sales of all of the Registrable Securities otherwise cannot be made thereunder (whether by reason of the Company's failure to amend or supplement the prospectus included therein in accordance with the Registration Rights Agreement, the Company shall not have failed to file and obtain effectiveness with the Commission of an additional Registration Statement required pursuant to the Registration Rights Agreement or otherwise) for more than twenty (20) consecutive Trading Days or more than eighty (80) Trading Days in any twelve (12) month period after such Registration Statement becomes effective;
(b) Accuracy of the Company's Representations and Warranties.
(I) The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the applicable Draw Down Date as though made at such time (except for representations and warranties specifically made as of a particular date which shall be true and correct in all material respects as of the date when made).
(II) The Company shall not have otherwise at any time have breached any material representation, warranty or covenant contained in this Agreement or the other Transaction Documents.
(c) Performance by the Company.
(I) The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement and the Registration Rights Agreement to be performed, satisfied or complied with by the Company at or prior to such date, nor shall there have occurred an Event of Default under this Agreement.
(II) The Company shall not have (i) failed to issue shares of Common Stock to the Investor on any Settlement Date as provided herein, (ii) failed to remove any restrictive legend (or withdraw any stop transfer instructions in respect thereof) on any certificate or any shares of Common Stock issued to the Investor on any Settlement Date as and when required by this Agreement or the Registration Rights Agreement, or (iii) failed to fulfill its obligations pursuant to this Agreement (or made any announcement, statement or threat that it does not intend to honor the obligations described in this paragraph), and any such failure shall continue uncured (or any announcement, statement or threat not to honor its obligations shall not be rescinded in writing) for five (5) days after the Company shall have been declared effective notified thereof in writing by the SEC prior to the first Advance Notice Date.Investor ;
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Sources: Equity Line Financing Agreement (Computer Motion Inc)