Common use of Conditions to Each Additional Closing Clause in Contracts

Conditions to Each Additional Closing. The obligation of each Buyer hereunder to purchase Units at each additional Closing Date is subject to the satisfaction, at or before the applicable 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 shall have complied with all of the conditions set forth in Section 7.1(a) on or prior to the Initial Closing Date. (ii) The Company shall have duly executed and delivered to such Buyer (a) the Securities being purchased by such Buyer at the applicable Closing, and (b) each of the other Transaction Documents to which the Company is a party and such other certificates or instruments required to be delivered by it pursuant to the Transaction Documents in connection with such Closing. (iii) Each Transaction Document to be entered into as of the applicable Closing Date has been duly executed and delivered by the Company and constitutes, as of such Closing Date, the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights generally, (ii) as limited by laws relating to specific performance, injunctive relief of other equitable remedies, and (iii) to the extent the indemnification provisions contained in this Agreement may be limited by applicable laws. (iv) The Company shall have delivered to such Buyer copies of certificates of good standing for each of the Company and Aeolus Sciences, Inc., each as certified by the Secretary of State of the State of Delaware within five (5) Business Days of such Closing Date. (v) On the applicable Closing Date, all stock transfer, documentary stamp taxes or other taxes (other than income or similar taxes) which are required to be paid in connection with the sale and transfer of the Securities to be sold to each Buyer hereunder on such Closing Date will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with. (vi) The Company shall have timely filed (or obtained extensions in respect thereof and filed within the applicable grace period) all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the 1934 Act from the date of this Agreement through the applicable Closing Date. (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) as of the date when made and as of such 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, and with respect to all other representations and warranties, after giving effect to any updated disclosure schedules delivered by the Company to the Buyer on such Closing Date or as otherwise described in any reports, schedules, forms, statements and other documents filed by the Company with the SEC pursuant to the reporting requirements of the 1934 Act from the period commencing on the Initial Closing Date and ending on such Closing Date, including the exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein; provided that such representations and warranties as so qualified by such updated disclosure schedules or other disclosures are reasonably acceptable to such Buyer in its sole discretion) and 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 at or prior to such Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer, President, Chief Financial Officer or Vice President of the Company, dated as of such Closing Date, to the foregoing effect, the conditions set forth in this Section 7(b) have been satisfied, and as to such other matters as may be reasonably requested by such Buyer, in form and substance acceptable to such Buyer. (viii) 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; provided that neither Xmark Opportunity Partners, LLC nor any “affiliate” of Xmark Opportunity Partners, LLC (as defined in Rule 144 of the ▇▇▇▇ ▇▇▇) shall have the right under this Section 7(b)(viii) to request that the Company deliver an opinion of counsel in connection with any additional Closing.