Conditions to Purchaser’s Obligation to Purchase. The Company understands that Purchaser's obligation to purchase the Initial Shares on the Closing Date is conditioned upon: 12.1 The existing S-3 Registration Statement shall have been declared effective by the SEC; 12.2 Acceptance by the Company of this Agreement for the sale of the Initial Shares, as indicated by the Company's execution and delivery of this Agreement; 12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement; 12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and 12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreement, if applicable. 12.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents. 12.7 From and after the date hereof to and including the Closing Date, the trading of the Common Stock shall not have been suspended by the SEC, or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case may be.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Purchase. a) The Company understands that Purchaser's obligation of the Purchaser hereunder to purchase the Initial Shares Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Seller(s) or the Company (as applicable) with prior written notice thereof:
i) The Seller(s) and Company shall have duly executed and delivered to such Purchaser each of the Transaction Documents to which it is a party and the Seller(s) shall have duly executed and delivered to such Purchaser the aggregate number of Securities set forth on the Purchase Schedule, being purchased by the Purchaser at the Closing pursuant to this Agreement.
ii) Such Purchaser shall have received the opinion of B▇▇▇▇, B▇▇▇▇▇ & S▇▇▇▇ PC, the Company’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to such Purchaser.
iii) The Company shall have delivered to such Purchaser a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) business days of the Closing Date.
iv) The Company shall have delivered to such Purchaser a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) business days of the Closing Date.
v) The Company shall have delivered to such Purchaser a certified copy of its Charter (including any certificate of designations) as certified by the Texas Secretary of State within ten (10) business days of the Closing Date.
vi) The Company shall have delivered to such Purchaser a certificate, in form and substance reasonably acceptable to such Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in form and substance reasonably acceptable to such Purchaser, (ii) the Charter of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
vii) Each and every representation and warranty of the Seller(s) and the Company shall be true and correct as of the date when made and true and correct in all material respects as of the Closing Date is conditioned upon:
12.1 The existing S-3 Registration Statement as though originally 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 specific date, and except for representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and the Seller(s) and the Company shall have been declared effective performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the SEC;
12.2 Acceptance Seller(s) and Company at or prior to the Closing Date. Such Purchaser shall have received a certificate, duly executed by the Company Chief Executive Officer of this Agreement the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Purchaser in form and substance reasonably acceptable to such Purchaser.
viii) The Seller(s) shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of the Initial SharesSecurities, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreementincluding without limitation, if applicableany.
12.6 ix) No statute, rule, regulation, executive order, decree, ruling or injunction shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits or adversely effects any the consummation of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after x) Since the date hereof of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
xi) Purchaser shall have obtained cash proceeds from a financing transaction sufficient to and including pay the Closing DatePurchase Price to Seller(s).
xii) The Company shall have delivered to such Purchaser such other documents, instruments or certificates relating to the trading of the Common Stock shall not have been suspended transactions contemplated by the SEC, this Agreement as such Purchaser or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case its counsel may bereasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Taronis Technologies, Inc.)
Conditions to Purchaser’s Obligation to Purchase. The Company understands that Purchaser's obligation of Purchaser hereunder to purchase the Initial Preferred Shares on to be purchased by it at the Closing Date and the payment of the Purchase Price is conditioned uponsubject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that such conditions are for Purchaser's sole benefit and may be waived by Purchaser at any time in such Purchaser's sole discretion:
12.1 (a) The existing S-3 Company and SJP shall have executed this Agreement and the Company shall have executed the Registration Statement Rights Agreement, and each shall have delivered executed copies to Purchaser.
(b) The Certificate of Designation shall have been declared effective accepted for filing with the Secretary of State of the State of Colorado and a copy thereof certified by the Secretary of State of the State of Colorado shall have been delivered to Purchaser.
(c) The Company shall have delivered to Purchaser duly executed certificates (each in such denominations as Purchaser shall request) representing the Preferred Shares being so purchased by Purchaser in accordance with Section 1(b) above.
(d) The Common Stock shall be authorized for quotation and listed on the AMEX, the NYSE, the NNM, the SmallCap or the Bulletin Board and trading in the Common Stock (or the AMEX, the NYSE, the NNM, the SmallCap generally or the Bulletin Board) shall not have been suspended by the SEC;
12.2 Acceptance by , the Company of this Agreement for AMEX, the sale of NYSE, the Initial SharesNNM, the SmallCap or the Bulletin Board, as indicated by applicable, and the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects Conversion Shares shall be listed on the Closing Date of AMEX, the NYSE, the NNM, the SmallCap or the Bulletin Board, as applicable.
(e) The representations and warranties of the Company contained in this Agreement and SJP shall be true and correct as if of the date when made on and as of the Closing Date as though made at that time (except for representations and warranties that relate to a different date, which shall be true and correct as of such date) and the performance Company and SJP shall have performed, satisfied and complied with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company on or before SJP, as applicable at or prior to the Closing Date. Such Purchaser shall have received certificates, executed by the Chief Executive Officer of the Company and of SJP, dated as of the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the foregoing effect set forth hereto and the Registration Rights Agreement, if applicableas to such other matters as Purchaser may reasonably request.
12.6 (f) No litigation, statute, rule, regulation, executive order, decree, ruling ruling, injunction, action or injunction proceeding shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which or any self-regulatory organization having authority over the matters contemplated hereby that questions the validity of, or challenges or prohibits or adversely effects the consummation of, any of the transactions contemplated by the Transaction Documents, and no proceeding or investigation this Agreement.
(g) Purchaser shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any received an opinions of the transactions contemplated by the Transaction Documents.
12.7 From and after the date hereof to and including Company's dated as of the Closing Date, in form, scope and substance reasonably satisfactory to the trading Purchaser and in substantially the form of EXHIBIT C attached hereto. Purchaser shall be entitled to receive, and rely upon, an opinion of SJP's counsel, dated as of the closing of the Transaction, in form, scope and substance reasonably satisfactory to the Purchaser in connection with the consummation of the Transaction.
(h) The Company shall have delivered evidence reasonably satisfactory to the Purchaser that the Company's transfer agent has agreed to act in accordance with irrevocable instructions in the form attached hereto as EXHIBIT D.
(i) There shall have been no material adverse changes and no material adverse developments in the business, properties, operations, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, or SJP and its subsidiaries, taken as a whole, since the date hereof, and no information, of which the Purchasers are not currently aware, shall come to the attention of the Purchaser that is materially adverse to the Company or SJP.
(j) The Board of Directors of the Company and the Board of Directors of SJP shall have adopted resolutions consistent with Section 3(b) (ii) and Section 4(b)(ii) above, respectively, and in a form reasonably acceptable to such Purchaser.
(k) The Company and SJP shall have delivered to Purchaser certificates evidencing the incorporation and good standing of the Company and each of its subsidiaries and of SJP and each of its subsidiaries in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Closing Date.
(l) The Company and SJP shall have delivered to Purchaser certified copies of their respective Articles of Incorporation as certified by the Secretary of State of their respective states of incorporation within ten days of the Closing Date.
(m) The Company and SJP shall have delivered to Purchaser secretary's certificates, dated as of the Closing Date, as to (i) the resolutions described in Section 7(j), (ii) their respective Certificates of Incorporation and (iii) their respective Bylaws, each as in effect at the Closing.
(n) SJP shall have obtained and delivered to Purchaser written evidence of the consent of each member of SJP to the Transaction, and the Transaction shall have been consummated in accordance with the Share Exchange Agreement. The Purchaser and its counsel shall have the right to review and approve, in their sole and absolute discretion, all documentation and matters related thereto. SJP and the Company shall have delivered to the Purchaser copies of an executed ▇▇▇▇ of Sale and an executed Assumption Agreement, or similar documents evidencing the consummation of the Transaction.
(o) All of the "CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE" set forth in Section 8 that certain Securities Purchase Agreement, dated as of June 17, 1998, among the Purchaser and Kapher Trust shall have been satisfied.
(p) The Company shall have cancelled or retired to treasury at least 400,000 shares of Common Stock shall not have been suspended by the SEC, or the AMEX and trading in securities generally as set forth on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case may beSchedule 3(d) hereto.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Purchase. a) The Company understands that Purchaser's obligation of the Purchaser hereunder to purchase the Initial Shares Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Seller(s) or the Corporation (as applicable) with prior written notice thereof:
i) The Seller(s) and Corporation shall have duly executed and delivered to such Purchaser each of the Transaction Documents to which it is a party and the Seller(s) shall have duly executed and delivered to such Purchaser the aggregate number of Securities set forth on the Purchase Schedule, being purchased by the Purchaser at the Closing pursuant to this Agreement.
ii) Such Purchaser shall have received the opinion of Corporation’s Attorney, the Corporation’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to such Purchaser.
iii) The Corporation shall have delivered to such Purchaser a certificate evidencing the formation and good standing of the Corporation in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Closing Date.
iv) The Corporation shall have delivered to such Purchaser a certificate evidencing the Corporation’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Corporation conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date.
v) The Corporation shall have delivered to such Purchaser a certified copy of its Articles of Incorporation (including any Certificate of Designations) as certified by the Texas Secretary of State within ten (10) days of the Closing Date.
vi) The Corporation shall have delivered to such Purchaser a certificate, in form and substance reasonably acceptable to such Purchaser, executed by the Secretary of the Corporation and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Corporation’s board of directors in form and substance reasonably acceptable to such Purchaser, (ii) the Articles of Incorporation of the Corporation and (iii) the Bylaws of the Corporation, each as in effect at the Closing.
vii) Each and every representation and warranty of the Seller(s) and the Corporation shall be true and correct as of the date when made and true and correct in all material respects as of the Closing Date as though originally 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 specific date, and except for representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and the Seller(s) and the Corporation shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Seller(s) and Corporation at or prior to the Closing Date. Such Purchaser shall have received a certificate, duly executed by the Chief Executive Officer of the Corporation, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Purchaser in form and substance reasonably acceptable to such Purchaser.
viii) The Corporation shall have delivered to such Purchaser a letter from the Corporation’s transfer agent certifying the number of shares of Common Stock outstanding on the Closing Date is conditioned upon:immediately prior to the Closing.
12.1 ix) The existing S-3 Registration Statement Seller(s) shall have been declared effective by the SEC;
12.2 Acceptance by the Company of this Agreement obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of the Initial SharesSecurities, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreementincluding without limitation, if applicableany.
12.6 x) No statute, rule, regulation, executive order, decree, ruling or injunction shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits or adversely effects any the consummation of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after xi) Since the date hereof to of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
xii) Such Purchaser shall have received a letter from the Seller(s), duly executed by the Seller(s), setting forth the wire amounts of each Purchaser and including the Closing Date, the trading wire transfer instructions of the Common Stock Seller(s) (the “Flow of Funds Letter”).
xiii) Purchaser shall not have been suspended obtained cash proceeds from a financing transaction sufficient to pay the Purchase Price to Seller(s).
xiv) The Corporation shall have delivered to such Purchaser such other documents, instruments or certificates relating to the transactions contemplated by the SEC, this Agreement as such Purchaser or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case its counsel may bereasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magnegas Applied Technology Solutions, Inc.)
Conditions to Purchaser’s Obligation to Purchase. a) The Company understands that Purchaser's obligation of the Purchaser hereunder to purchase the Initial Shares Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Seller(s) or the Corporation (as applicable) with prior written notice thereof:
i) The Seller(s) and Corporation shall have duly executed and delivered to such Purchaser each of the Transaction Documents to which it is a party and the Seller(s) shall have duly executed and delivered to such Purchaser the aggregate number of Securities set forth on the Purchase Schedule, being purchased by the Purchaser at the Closing pursuant to this Agreement.
ii) Such Purchaser shall have received the opinion of Corporation’s Attorney, the Corporation’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to such Purchaser.
iii) The Corporation shall have delivered to such Purchaser a certificate evidencing the formation and good standing of the Corporation in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Closing Date.
iv) The Corporation shall have delivered to such Purchaser a certificate evidencing the Corporation’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Corporation conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date.
v) The Corporation shall have delivered to such Purchaser a certified copy of its Articles of Incorporation (including any Certificate of Designations) as certified by the Texas Secretary of State within ten (10) days of the Closing Date.
vi) The Corporation shall have delivered to such Purchaser a certificate, in form and substance reasonably acceptable to such Purchaser, executed by the Secretary of the Corporation and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Corporation’s board of directors in form and substance reasonably acceptable to such Purchaser, (ii) the Articles of Incorporation of the Corporation and (iii) the Bylaws of the Corporation, each as in effect at the Closing.
vii) Each and every representation and warranty of the Seller(s) and the Corporation shall be true and correct as of the date when made and true and correct in all material respects as of the Closing Date as though originally 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 specific date, and except for representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and the Seller(s) and the Corporation shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Seller(s) and Corporation at or prior to the Closing Date. Such Purchaser shall have received a certificate, duly executed by the Chief Executive Officer of the Corporation, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Purchaser in form and substance reasonably acceptable to such Purchaser.
viii) The Corporation shall have delivered to such Purchaser a letter from the Corporation’s transfer agent certifying the number of shares of Common Stock outstanding on the Closing Date is conditioned upon:immediately prior to the Closing.
12.1 ix) The existing S-3 Registration Statement Seller(s) shall have been declared effective by the SEC;
12.2 Acceptance by the Company of this Agreement obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Initial SharesSecurities, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreementincluding without limitation, if applicableany.
12.6 x) No statute, rule, regulation, executive order, decree, ruling or injunction shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits or adversely effects any the consummation of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after xi) Since the date hereof to of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
xii) Such Purchaser shall have received a letter from the Seller(s), duly executed by the Seller(s), setting forth the wire amounts of each Purchaser and including the Closing Date, the trading wire transfer instructions of the Common Stock Seller(s) (the “Flow of Funds Letter”).
xiii) Purchaser shall not have been suspended obtained cash proceeds from a financing transaction sufficient to pay the Purchase Price to Seller(s).
xiv) The Corporation shall have delivered to such Purchaser such other documents, instruments or certificates relating to the transactions contemplated by the SEC, this Agreement as such Purchaser or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case its counsel may bereasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magnegas Applied Technology Solutions, Inc.)
Conditions to Purchaser’s Obligation to Purchase. The Company understands that Purchaser's obligation of Purchaser hereunder to purchase the Initial Preferred Shares on to be purchased by it at the Closing Date and the payment of the Purchase Price is conditioned uponsubject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that such conditions are for Purchaser's sole benefit and may be waived by Purchaser at any time in such Purchaser's sole discretion:
12.1 (a) The existing S-3 Company and SJP shall have executed this Agreement and the Company shall have executed the Registration Statement Rights Agreement, and each shall have delivered executed copies to Purchaser.
(b) The Certificate of Designation shall have been declared effective accepted for filing with the Secretary of State of the State of Colorado and a copy thereof certified by the Secretary of State of the State of Colorado shall have been delivered to Purchaser.
(c) The Company shall have delivered to Purchaser duly executed certificates (each in such denominations as Purchaser shall request) representing the Preferred Shares being so purchased by Purchaser in accordance with Section 1(b) above.
(d) The Common Stock shall be authorized for quotation and listed on the AMEX, the NYSE, the NNM, the SmallCap or the Bulletin Board and trading in the Common Stock (or the AMEX, the NYSE, the NNM, the SmallCap generally or the Bulletin Board) shall not have been suspended by the SEC;
12.2 Acceptance by , the Company of this Agreement for AMEX, the sale of NYSE, the Initial SharesNNM, the SmallCap or the Bulletin Board, as indicated by applicable, and the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects Conversion Shares shall be listed on the Closing Date of AMEX, the NYSE, the NNM, the SmallCap or the Bulletin Board, as applicable.
(e) The representations and warranties of the Company contained in this Agreement and SJP shall be true and correct as if of the date when made on and as of the Closing Date as though made at that time (except for representations and warranties that relate to a different date, which shall be true and correct as of such date) and the performance Company and SJP shall have performed, satisfied and complied with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company on or before SJP, as applicable at or prior to the Closing Date. Such Purchaser shall have received certificates, executed by the Chief Executive Officer of the Company and of SJP, dated as of the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the foregoing effect set forth hereto and the Registration Rights Agreement, if applicableas to such other matters as Purchaser may reasonably request.
12.6 (f) No litigation, statute, rule, regulation, executive order, decree, ruling ruling, injunction, action or injunction proceeding shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which or any self regulatory organization having authority over the matters contemplated hereby that questions the validity of, or challenges or prohibits or adversely effects the consummation of, any of the transactions contemplated by the Transaction Documents, and no proceeding or investigation this Agreement.
(g) Purchaser shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any received an opinions of the transactions contemplated by the Transaction Documents.
12.7 From and after the date hereof to and including Company's dated as of the Closing Date, in form, scope and substance reasonably satisfactory to the trading Purchaser and in substantially the form of Exhibit C attached hereto. Purchaser shall be entitled to receive, and rely upon, an opinion of SJP's counsel, dated as of the closing of the Transaction, in form, scope and substance reasonably satisfactory to the Purchaser in connection with the consummation of the Transaction.
(h) The Company shall have delivered evidence reasonably satisfactory to the Purchaser that the Company's transfer agent has agreed to act in accordance with irrevocable instructions in the form attached hereto as Exhibit D.
(i) There shall have been no material adverse changes and no material adverse developments in the business, properties, operations, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, or SJP and its subsidiaries, taken as a whole, since the date hereof, and no information, of which the Purchasers are not currently aware, shall come to the attention of the Purchaser that is materially adverse to the Company or SJP.
(j) The Board of Directors of the Company and the Board of Directors of SJP shall have adopted resolutions consistent with Section 3(b) (ii) and Section 4(b)(ii) above, respectively, and in a form reasonably acceptable to such Purchaser.
(k) The Company and SJP shall have delivered to Purchaser certificates evidencing the incorporation and good standing of the Company and each of its subsidiaries and of SJP and each of its subsidiaries in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Closing Date.
(l) The Company and SJP shall have delivered to Purchaser certified copies of their respective Articles of Incorporation as certified by the Secretary of State of their respective states of incorporation within ten days of the Closing Date.
(m) The Company and SJP shall have delivered to Purchaser secretary's certificates, dated as of the Closing Date, as to (i) the resolutions described in Section 7(j), (ii) their respective Certificates of Incorporation and (iii) their respective Bylaws, each as in effect at the Closing.
(n) SJP shall have obtained and delivered to Purchaser written evidence of the consent of each member of SJP to the Transaction, and the Transaction shall have been consummated in accordance with the Share Exchange Agreement. The Purchaser and its counsel shall have the right to review and approve, in their sole and absolute discretion, all documentation and matters related thereto. SJP and the Company shall have delivered to the Purchaser copies of an executed Bill of Sale and an execu▇▇▇ Assumption Agreement, or similar documents evidencing the consummation of the Transaction.
(o) All of the "CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE" set forth in Section 8 that certain Securities Purchase Agreement, dated as of June 17, 1998, among the Purchaser and Kapher Trust shall have been satisfied.
(p) The Company shall have cancelled or retired to treasury at least 400,000 shares of Common Stock shall not have been suspended by the SEC, or the AMEX and trading in securities generally as set forth on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case may beSchedule 3(d) hereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Boulder Capital Opportunities Iii Inc)
Conditions to Purchaser’s Obligation to Purchase. The Company understands that Purchaser's obligation to purchase the Initial Shares on the Closing Date is conditioned upon:
12.1 The existing S-3 Registration Statement shall have been declared effective by (a) Delivery of the SECShares and Warrants to counsel to Purchaser;
12.2 Acceptance by the Company (b) A certified copy of this Agreement for the sale of the Initial Shares, as indicated by an amendment to the Company's execution and delivery certificate of this Agreementincorporation, certified by the Secretary of New Jersey;
12.3 Delivery by the Company to the Escrow Agent (c) Receipt of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of letter from counsel for to the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreement, if applicable.
12.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after the date hereof to and including the Closing Date, the trading of the Common Stock shall not have been suspended by the SEC, or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial SharesCompany's general counsel, as the case may be, in form reasonably satisfactory to Purchaser's counsel, to the effect that:
(i) The Company is duly incorporated, validly existing and in good standing in the jurisdiction of its incorporation;
(ii) Except as set forth on Schedule 3.11, there is no action, proceeding or investigation pending, or to such counsel's knowledge, threatened against the Company which might result, either individually or in the aggregate, in any material adverse change in the business, prospects, conditions, affairs or operations of the Company;
(iii) The Company is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality;
(iv) There is no action, suit, proceeding or investigation initiated by the Company currently pending or which the Company currently intends to initiate;
(v) All issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable;
(vi) The Certificate of Amendment has been duly filed with the State of New Jersey and this Agreement, the Warrant Agreements, the issuance of the Shares and Warrants, and the issuance of the Conversion Shares and Warrant Shares, have been duly approved by all required corporate action and that all such Securities, upon delivery in accordance with this Agreement and the Warrant Agreements, shall be validly issued and outstanding, fully paid and nonassessable.
(vii) The execution, delivery and performance of this Agreement and the Warrant Agreements by the Company, and the consummation of the transactions contemplated thereby, will not, with or without the giving of notice or the passage of time or both:
(A) Violate the provisions of any law, rule or regulation applicable to the Company;
(B) Violate the provisions of the charter or bylaws of the Company;
(C) To the best of counsel's knowledge, violate any judgment, decree, order or award of any court, governmental body or arbitrator; or
(D) To the best of counsel's knowledge, conflict with, or result in the breach or termination of any term or provision of, or constitute a default under, or cause any acceleration under, or cause the creation of any lien, charge or encumbrance upon the properties or assets of the Company pursuant to, any note, bond, indenture, mortgage, lease, deed of trust or other instrument, obligation, or agreement to which the Company is a party or by which the Company, or any of its properties is or may be bound;
(viii) This Agreement and the Warrant Agreements constitute the valid and legally binding obligations of the Company and are enforceable against the Company in accordance with their respective terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies, and, with respect to this Agreement, to limitations of public policy as they may apply to the indemnification provisions set forth in Section 7.4 thereof.
(e) Purchaser's reasonable satisfaction that no material adverse change in the Company's business or prospects has occurred since the date of the Company's last SEC Report; and
Appears in 1 contract
Sources: Series a Preferred Stock and Warrant Purchase Agreement (Kti Inc)
Conditions to Purchaser’s Obligation to Purchase. a) The Company understands that Purchaser's obligation of the Purchaser hereunder to purchase the Initial Shares Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Seller(s) or the Company (as applicable) with prior written notice thereof:
i) The Seller(s) and Company shall have duly executed and delivered to such Purchaser each of the Transaction Documents to which it is a party and the Seller(s) shall have duly executed and delivered to such Purchaser the aggregate number of Securities set forth on the Purchase Schedule, being purchased by the Purchaser at the Closing pursuant to this Agreement.
ii) Such Purchaser shall have received the opinion of [Company’s Attorney], the Company’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to such Purchaser.
iii) The Company shall have delivered to such Purchaser a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) business days of the Closing Date.
iv) The Company shall have delivered to such Purchaser a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) business days of the Closing Date.
v) The Company shall have delivered to such Purchaser a certified copy of its Charter (including any certificate of designations) as certified by the Texas Secretary of State within ten (10) business days of the Closing Date.
vi) The Company shall have delivered to such Purchaser a certificate, in form and substance reasonably acceptable to such Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in form and substance reasonably acceptable to such Purchaser, (ii) the Charter of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
vii) Each and every representation and warranty of the Seller(s) and the Company shall be true and correct as of the date when made and true and correct in all material respects as of the Closing Date is conditioned upon:
12.1 The existing S-3 Registration Statement as though originally 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 specific date, and except for representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and the Seller(s) and the Company shall have been declared effective performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the SEC;
12.2 Acceptance Seller(s) and Company at or prior to the Closing Date. Such Purchaser shall have received a certificate, duly executed by the Company Chief Executive Officer of this Agreement the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Purchaser in form and substance reasonably acceptable to such Purchaser.
viii) The Seller(s) shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of the Initial SharesSecurities, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreementincluding without limitation, if applicableany.
12.6 ix) No statute, rule, regulation, executive order, decree, ruling or injunction shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits or adversely effects any the consummation of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after x) Since the date hereof of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
xi) Purchaser shall have obtained cash proceeds from a financing transaction sufficient to and including pay the Closing DatePurchase Price to Seller(s).
xii) The Company shall have delivered to such Purchaser such other documents, instruments or certificates relating to the trading of the Common Stock shall not have been suspended transactions contemplated by the SEC, this Agreement as such Purchaser or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case its counsel may bereasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magnegas Applied Technology Solutions, Inc.)
Conditions to Purchaser’s Obligation to Purchase. a) The Company understands that Purchaser's obligation of the Purchaser hereunder to purchase the Initial Shares Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Seller(s) or the Company (as applicable) with prior written notice thereof:
i) The Seller(s) and Company shall have duly executed and delivered to such Purchaser each of the Transaction Documents to which it is a party and the Seller(s) shall have duly executed and delivered to such Purchaser the aggregate number of Securities set forth on the Purchase Schedule, being purchased by the Purchaser at the Closing pursuant to this Agreement.
ii) Such Purchaser shall have received the opinion of the Company’s Attorney, the Company’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to such Purchaser.
iii) The Company shall have delivered to such Purchaser a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) business days of the Closing Date.
iv) The Company shall have delivered to such Purchaser a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) business days of the Closing Date.
v) The Company shall have delivered to such Purchaser a certified copy of its Charter (including any certificate of designations) as certified by the Texas Secretary of State within ten (10) business days of the Closing Date.
vi) The Company shall have delivered to such Purchaser a certificate, in form and substance reasonably acceptable to such Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in form and substance reasonably acceptable to such Purchaser, (ii) the Charter of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
vii) Each and every representation and warranty of the Seller(s) and the Company shall be true and correct as of the date when made and true and correct in all material respects as of the Closing Date is conditioned upon:
12.1 The existing S-3 Registration Statement as though originally 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 specific date, and except for representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and the Seller(s) and the Company shall have been declared effective performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the SEC;
12.2 Acceptance Seller(s) and Company at or prior to the Closing Date. Such Purchaser shall have received a certificate, duly executed by the Company Chief Executive Officer of this Agreement the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Purchaser in form and substance reasonably acceptable to such Purchaser.
viii) The Seller(s) shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of the Initial SharesSecurities, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreementincluding without limitation, if applicableany.
12.6 ix) No statute, rule, regulation, executive order, decree, ruling or injunction shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits or adversely effects any the consummation of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after x) Since the date hereof of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
xi) Purchaser shall have obtained cash proceeds from a financing transaction sufficient to and including pay the Closing DatePurchase Price to Seller(s).
xii) The Company shall have delivered to such Purchaser such other documents, instruments or certificates relating to the trading of the Common Stock shall not have been suspended transactions contemplated by the SEC, this Agreement as such Purchaser or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case its counsel may bereasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magnegas Applied Technology Solutions, Inc.)
Conditions to Purchaser’s Obligation to Purchase. The Company ------------------------------------------------ understands that Purchaser's obligation to purchase the Initial Subscribed Shares on the each Closing Date pursuant to this Agreement is conditioned uponupon the following:
12.1 The existing S-3 Registration Statement shall have been declared effective by (a) the SEC;
12.2 Acceptance by the Company of this Agreement for the sale of the Initial Shares, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date each such date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date such date and the performance by the Company on or before the Closing Date each such date of all covenants and agreements of the Company required to be performed on or before the Closing Date; andsuch date;
12.5 On the Closing Date(b) there not being in effect any law, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreement, if applicable.
12.6 No statute, rule, regulation, executive order, decree, ruling rule or injunction shall be enacted, entered, promulgated regulation prohibiting or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of restricting the transactions contemplated by the Transaction Documentshereby, and no or requiring any consent or approval which shall not have been obtained, nor there being any pending or threatened proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting affecting any of the transactions contemplated by this Agreement;
(c) a registration statement relating to the Transaction Documents.
12.7 From Registration Rights Agreement shall be effective, and after the date hereof if previously suspended shall be effective and have been effective for at least fifteen (15) days prior to and including the Closing Date, and shall relate to the Subscribed Shares and the Additional Warrants to be issued in such Closing;
(d) the trading of the Common Stock shall not have been be suspended by the SEC, SEC or the AMEX NASD;
(e) the Company shall be in compliance with all Blue Sky laws necessary to issue and trading resell through a broker in securities generally on the New York Stock Exchange or NASDAQ State of California the Subscribed Shares relating to such Closing;
(f) as of the date hereof, (i) the Company shall not have been suspended materially changed its line of business (ii) the Company shall not be material in default under any of its existing debt or limitedloan obligations, nor (iii) there shall minimum prices have been established for securities traded on NASDAQbe no current SEC finding of wrongdoing by the Company, nor (iv) there shall there be any outbreak no final adverse determination against the Company by a court or escalation governmental agency and (v) no bankruptcy proceeding shall be initiated with respect to the Company, in each case which has a Material Adverse Effect; and
(g) the Company shall deliver to the Purchaser an opinion of hostilities involving the United States or any material adverse change in any financial market that in either case counsel substantially in the reasonable judgment form of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case may beExhibit D hereto.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Purchase. The Company understands that Purchaser's obligation to purchase the Initial Shares and the Additional Shares on the Initial Closing Date and each Additional Closing Date, respectively, pursuant to this Agreement is conditioned upon:
12.1 The existing S-3 Registration Statement shall have been declared effective by (a) the SEC;
12.2 Acceptance by the Company of this Agreement for the sale of the Initial Shares, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date each such date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date such date and the performance by the Company on or before the Closing Date each such date of all covenants and agreements of the Company required to be performed on or before the Closing Date; andsuch date;
12.5 On the Closing Date(b) on or before each such date, Purchaser having received an opinion of counsel for the Company, dated the Closing Dateon each such date, in formthe form of Exhibit D hereto;
(c) there not being in effect any law, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights Agreement, if applicable.
12.6 No statute, rule, regulation, executive order, decree, ruling rule or injunction shall be enacted, entered, promulgated regulation prohibiting or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of restricting the transactions contemplated by the Transaction Documentshereby, and no or requiring any consent or approval which shall not have been obtained, nor there being any pending or threatened proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting affecting any of the transactions contemplated by the Transaction Documents.this Agreement;
12.7 From (d) from and after the date hereof to and including the Initial Closing Date and the Additional Closing Date, the trading of the Common Stock shall not have been suspended by the SEC, SEC or the AMEX NASD;
(e) the Registration Statement relating to the Common Stock and trading in securities generally related Warrants shall have been declared effective by the SEC and shall continue to be effective;
(f) the Company's Common Stock continues to be traded on the New York Stock Exchange or NASDAQ Over the Counter Bulletin Board;
(g) the Company's compliance with all blue sky laws to enable the Shares to be issued and resold through a broker in the State of California;
(h) the number of Shares to be purchased on the Closing Date shall not have been suspended or limitedexceed the number of such shares that, nor shall minimum prices have been established for securities traded on NASDAQwhen aggregated with all other shares of Common Stock then owned by the Purchaser beneficially, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case would result in the reasonable judgment Purchaser owning more than 4.99% of Purchaser makes it impracticable or inadvisable to purchase the Initial Sharesall of such Common Stock as would be outstanding on such Closing Date, as determined in accordance with Section 16 of the case may beExchange Act and the regulations promulgated thereunder. For purposes of this Section 10.2(h), in the event that the amount of Common Stock outstanding as determined in accordance with Section 16 of the Exchange Act and the regulations promulgated thereunder is greater on a Closing Date than on the date upon which the Put Notice associated with such Closing Date is given, the amount of Common Stock outstanding on such Closing Date shall govern for purposes of determining whether the Purchaser, when aggregating all purchases of Common Stock made pursuant to this Agreement would own more than 4.99% of the Common Stock following such Closing Date.; and
(i) no disputes arise as a result of periodic due diligence investigations conducted by the Purchaser.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Purchase. a) The Company understands that Purchaser's obligation of the Purchaser hereunder to purchase the Initial Shares Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Sellers or the Company (as applicable) with written notice thereof:
i) The Sellers and the Company shall have duly executed and delivered to the Purchaser each of the Transaction Documents to which it is a party and the Sellers shall have duly executed and delivered to the Purchaser the aggregate number of Securities set forth on the Schedule of Purchasers, being purchased by the Purchaser at the Closing pursuant to this Agreement.
ii) The Company shall have delivered to the Purchaser a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within fifteen (15) days of the Closing Date.
iii) The Company shall have delivered to such Purchaser a copy of its Articles of Incorporation (including any Certificate of Designations).
iv) The Company shall have delivered to the Purchaser a certificate, in form and substance reasonably acceptable to such Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in form and substance reasonably acceptable to such Purchaser, (ii) the Articles of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
v) Each and every representation and warranty of the Sellers and the Company shall be true and correct as of the date when made and true and correct in all material respects as of the Closing Date is conditioned upon:
12.1 The existing S-3 Registration Statement as though originally 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 specific date, and except for representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and the Sellers and the Company shall have been declared effective performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the SEC;
12.2 Acceptance Sellers and Company at or prior to the Closing Date. Such Purchaser shall have received a certificate, duly executed by the Company Chief Executive Officer of this Agreement the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Purchaser in form and substance reasonably acceptable to such Purchaser.
vi) The Sellers shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of the Initial Shares, as indicated by the Company's execution and delivery of this Agreement;
12.3 Delivery by the Company to the Escrow Agent of the Certificate in accordance with this Agreement;
12.4 The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; and
12.5 On the Closing Date, Purchaser having received an opinion of counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to Purchaser, to the effect set forth hereto and the Registration Rights AgreementSecurities, if applicableany.
12.6 vii) No statute, rule, regulation, executive order, decree, ruling or injunction shall be have been enacted, entered, promulgated or endorsed by any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits or adversely effects any the consummation of the transactions contemplated by the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by the Transaction Documents.
12.7 From and after viii) Since the date hereof of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
ix) The Company shall have delivered to and including such Purchaser such other documents, instruments or certificates relating to the Closing Date, the trading of the Common Stock shall not have been suspended transactions contemplated by the SEC, this Agreement as such Purchaser or the AMEX and trading in securities generally on the New York Stock Exchange or NASDAQ shall not have been suspended or limited, nor shall minimum prices have been established for securities traded on NASDAQ, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the reasonable judgment of Purchaser makes it impracticable or inadvisable to purchase the Initial Shares, as the case its counsel may bereasonably request.
Appears in 1 contract