Conditions to the Initial Closing. 2.7.1 The obligations of Gilead hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived: (a) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects. (b) The Company shall have complied in all material respects with its covenants hereunder as of the Initial Closing Date. (c) The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing). (d) The Company shall have duly executed and delivered the Investor Rights Agreement. (e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained. (f) The issuance and sale of the Initial Shares shall not result in a breach of Law. (g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead. (h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority. (i) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent. (j) NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions. 2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived: (a) The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct as of the Initial Closing Date in all material respects. (b) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing). (c) Gilead shall have duly executed and delivered the Investor Rights Agreement. (d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained. (e) The issuance and sale of the Initial Shares shall not result in a breach of Law. (f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company. (g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.
Appears in 4 contracts
Sources: Common Stock Purchase Agreement (Gilead Sciences, Inc.), Common Stock Purchase Agreement (Gilead Sciences, Inc.), Common Stock Purchase Agreement (Gilead Sciences Inc)
Conditions to the Initial Closing. 2.7.1 The obligations of Gilead hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) The Company shall have complied in all material respects with its covenants hereunder as of the Initial Closing Date.
(c) The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(i) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent.
(j) NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waivedmet:
(ai) The the representations and warranties of Gilead set forth made in Section 3.2 hereof shall be of the Agreement qualified as to materiality are true and correct complete as of the date of the Initial Closing Date and the representations and warranties made in Section 3.2 of the Agreement not so qualified are true and complete in all material respects as of the Initial Closing Date Date;
(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the date of the Initial Closing shall have been performed; and
(iii) the delivery by the Purchaser of the items set forth in all material respectsSection 2.1(b) of this Agreement.
(b) Gilead shall have duly executed and delivered The obligations of the Collaboration Agreement, such agreement shall continue to be Purchaser hereunder in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously connection with the Initial Closing).Closing are subject to the following conditions being met:
(ci) Gilead shall have duly executed the representations and delivered warranties made in Section 3.1 of the Investor Rights Agreement.
(d) All required Antitrust Approvals under Agreement qualified as to materiality are true and complete as of the HSR Act for Gilead’s purchase date of the Initial Shares Closing Date and the representations and warranties made in Section 3.1 of the Agreement not so qualified are true and complete in all material respects as of the Initial Closing Date;
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the date of the Initial Closing shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.1(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) all consents of any Person necessary to the consummation of the transactions contemplated by the Collaboration this Agreement and the Investor Rights Agreement other Transaction Documents, including consents from parties to loans, contracts, leases or other agreements and consents from governmental agencies, whether federal, state or local shall have been obtained, and a copy of each such consent shall have been provided to Purchaser at or prior to the date of the Initial Closing; provided, however, that Purchaser hereby agrees that no consent is required from:
(A) Pacific Road Capital A Pty. Limited, as trustee for Pacific Road Resources Fund A (“Fund A”), Pacific Road Capital B Pty. Limited, as trustee for Pacific Road Resources Fund B (“Fund B”), and Pacific Road Capital Management G.P. Limited, as General Partner of Pacific Road Resources Fund L.P. (“PR Partnership” and, together with Fund A and Fund B, the “▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇”);
(B) Centurion Private Equity, LLC; and
(C) the “Purchasers” under Securities Purchase Agreements between the Company and such Purchasers with respect to the Company’s offering of Units of its securities for $0.27 per Unit, with each “Unit” consisting of (x) one share of Common Stock and (y) a warrant to purchase one-half of a share of Common Stock at an exercise price of $0.40 per whole share.
(evi) The issuance and sale from the date hereof to the date of the Initial Shares Closing, trading in the Common Stock shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered suspended or ceased by Gilead the Commission, a Canadian securities regulatory authority or the Company’s principal Trading Market, and, at any time prior to the Company.
(g) No proceeding challenging this Agreement Initial Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or the transactions contemplated herebylimited, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, minimum prices shall not have been instituted established on securities whose trades are reported by such service, or be pending before on any Governmental AuthorityTrading 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 reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Initial Closing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Li3 Energy, Inc.), Securities Purchase Agreement (POSCO Canada Ltd.)
Conditions to the Initial Closing. 2.7.1 The obligations obligation of Gilead each Buyer hereunder in connection with to purchase the Notes and the related Warrants at the Initial Closing are is subject to the following conditions being satisfied satisfaction, at or waived:
(a) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) The Company shall have complied in all material respects with its covenants hereunder as of before the Initial 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.
(ci) The Company shall have duly executed and delivered to such Buyer (a) each Note (allocated in such principal amounts as such Buyer shall request) being purchased by such Buyer at the Collaboration Initial Closing pursuant to Section 1(a) of this Agreement, (b) the related Warrants (allocated in such agreement amounts as such Buyer shall continue request) being purchased by such Buyer at the Initial Closing pursuant to Section 1(a) of this Agreement, and (c) 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 full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously connection with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent irrevocable written Instructions, in the form of Exhibit C attached hereto, which instructions shall have been executed by the Company and delivered to issue and acknowledged in writing by the Company’s transfer agent.
(iii) Such Buyer shall have received the opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, dated as of the Initial Shares Closing Date, in substantially the form of Exhibit D attached hereto.
(iv) The Company shall have delivered to Gilead such Buyer copies of (a) the Certificate of Incorporation of the Company and (b) the certificate of incorporation of Aeolus Sciences, Inc., each as certified by the Secretary of State of the State of Delaware within ten (10) Business Days of the Initial Closing Date.
(v) 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 the Initial 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 Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company, (iii) the certificate of incorporation of Aeolus Sciences, Inc., (iii) the Bylaws of the Company and (iv) the bylaws of Aeolus Sciences, Inc., each as in effect at the Initial Closing, which certificate shall be in form and substance acceptable to the Transfer AgentBuyers and shall provide specimen signatures for each of the officers or directors of the Company who execute and deliver this Agreement or any other Transaction Document to be delivered at the Initial Closing by or on behalf of the Company (in each case, pursuant to the authorization of the Company’s board of directors).
(j) NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(avii) The representations and warranties of Gilead set forth the Company shall be true and correct in Section 3.2 hereof 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 the Initial 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 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 the Initial Closing Date Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer, President or Vice President of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, in all material respectsform and substance acceptable to the Buyers.
(bviii) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date The Common Stock (under and as defined thereinI) shall be designated for quotation or listed on the Principal Market and (II) shall not have occurred (or shall occur simultaneously with been suspended, as of the Initial Closing)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 Initial 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.
(cix) Gilead The Company shall have duly executed obtained all governmental, regulatory or third party consents and delivered approvals, if any, necessary for the Investor Rights Agreementsale of the Securities.
(dx) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement as such Buyer or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authorityits counsel may reasonably request.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Aeolus Pharmaceuticals, Inc.), Securities Purchase Agreement (Aeolus Pharmaceuticals, Inc.)
Conditions to the Initial Closing. 2.7.1 (a) The obligations of Gilead hereunder in connection with the Company and the Purchaser to consummate the transactions contemplated hereby at the Initial Closing are subject to the satisfaction of the following conditions being satisfied conditions: no temporary restraining order, preliminary or waivedpermanent injunction or other order or decree which prevents the consummation of the transactions contemplated hereby shall have been issued and remain in effect, and no statutes, rule or regulation shall have been enacted by any governmental authority (of the United States or otherwise) which prevents the consummation of the transactions contemplated hereby; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(b) The obligations of the Purchaser to consummate the transactions contemplated hereby at the Initial Closing is subject to the satisfaction or waiver, on or prior to the date of the Initial Closing, of the following conditions:
(ai) The the representations and warranties of the Company set forth in Section 3.1 hereof 2 of this Agreement shall be true and correct in all material respects as of the date when made and (unless made as of a specified date) as of the date of the Initial Closing; any and all documents or other materials provided to the Purchaser shall not contain any material misstatements or fail to contain any material fact; and the Company shall have performed in all material respects its covenants set forth in this Agreement to be performed prior to the date of the Initial Closing Date and shall not have taken any action which (if any shares of Series A Preferred Stock were outstanding) would violate any provision of the Certificate of Incorporation (including the Certificate of Designation) or this Agreement or the Ancillary Documents, as the case may be (and at the Initial Closing the Company shall deliver to the Purchaser an officer’s certificate certifying as to the Company’s compliance with the conditions set forth in all material respects.this clause (i), in the form of the officers certificate attached hereto in Schedule 1.4(b)(i));
(bii) The Company and the Purchaser shall have complied entered into the Registration Rights Agreement in the form of Exhibit C hereto (the “Registration Rights Agreement”), the Stockholders Agreement (discussed in Section 2.24 hereof) and, together with all material respects with its covenants hereunder as other contracts, agreements, schedules, certificates and other documents (including, but not limited to, the Certificate of the Initial Closing Date.
(c) The Company shall have duly executed and delivered the Collaboration AgreementDesignation, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined thereinWarrants) shall have occurred (being delivered pursuant to or shall occur simultaneously in connection with this Agreement by any party hereto at or prior to the Initial Closing, the “Ancillary Documents”).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(iiii) The Company shall have delivered to the Transfer Agent irrevocable written instructions Purchaser certificates of good standing from the jurisdictions set forth on Schedule 1.4(b)(iii) with respect to issue the Company and its Subsidiaries dated as of a date no earlier than ten days prior to the Initial Shares to Gilead in a form and substance acceptable to the Transfer AgentClosing.
(jiv) NYSE shall have raised no objection to the consummation The Certificate of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations Incorporation of the Company hereunder shall have been amended and supplemented by a Certificate of Designation substantially in connection the form of Exhibit D hereto setting forth the rights and preferences of the Series A Preferred Stock (the “Certificate of Designation”), and the Certificate of Designation shall have been filed with the Initial Closing are subject to Secretary of State of the following conditions being satisfied or waived:
State of Delaware (a) the Certificate of Incorporation, as amended, including such Certificate of Designation, the “Certificate of Incorporation”). The representations Series A Preferred Stock will have all of the rights, priorities and warranties of Gilead terms set forth in Section 3.2 hereof shall be true and correct as the Certificate of the Initial Closing Date in all material respects.
(b) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(c) Gilead shall have duly executed and delivered the Investor Rights Agreement.
(d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.Designations;
Appears in 1 contract
Sources: Series a Preferred Stock and Warrant Purchase Agreement (Teraglobal Communications Corp)
Conditions to the Initial Closing. 2.7.1 The obligations of Gilead hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of the Company set forth in Section 3.1 hereof that are not qualified by materiality shall be true and correct in all material respects as of the Initial Closing Date and the representations and warranties of the Company set forth in Section 3.1 that are qualified by materiality shall be true and correct in all material respectsrespects as of the Initial Closing Date.
(b) The Company shall have complied in all material respects with its covenants hereunder as of the Initial Closing Date.
(c) The Company shall have duly executed and delivered the Collaboration Agreement, Agreement and such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing)effect.
(d) The Company shall have duly executed and delivered the Investor Rights AgreementAgreement and such agreement shall be in full force and effect.
(e) All required Antitrust Approvals under The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for the HSR Act for Gilead’s purchase consummation of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance purchase and sale of the Initial Shares Shares, all of which shall not result be in a breach of Lawfull force and effect.
(gf) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(hg) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(ih) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent.
(ji) NYSE The Company shall have filed with Nasdaq a Listing of Additional Shares Notification Form for the listing of the Shares, if required, and Nasdaq shall not have raised no an objection to the consummation of the transactions contemplated by this Agreement the Transaction Documents (including the issuance of Additional Shares hereunder), .
(j) The Company shall have delivered Valid Account Details to Gilead at least five (5) Business Days prior to the Investor Rights Agreement Initial Closing Date in a form and the Collaboration Agreement in the absence of stockholder approval of such transactionssubstance acceptable to Gilead.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of Gilead set forth in Section 3.2 hereof that are not qualified by materiality shall be true and correct in all material respects as of the Initial Closing Date and the representations and warranties of Gilead set forth in Section 3.2 hereof that are qualified by materiality shall be true and correct in all material respectsrespects as of the Initial Closing Date.
(b) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be complied in full force and effect and the Effective Date (under and all material respects with its covenants hereunder as defined therein) shall have occurred (or shall occur simultaneously with of the Initial Closing)Closing Date.
(c) Gilead shall have duly executed and delivered the Investor Rights AgreementCollaboration Agreement and such agreement shall be in full force and effect.
(d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares Gilead shall have duly executed and the transactions contemplated by the Collaboration Agreement and delivered the Investor Rights Agreement and such agreement shall have been obtainedbe in full force and effect.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(gf) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Assembly Biosciences, Inc.)
Conditions to the Initial Closing. 2.7.1 (a) The obligations of Gilead hereunder in connection with Corn Products to consummate the Initial Closing are subject to the satisfaction, on or prior to the Initial Closing Date, of the following conditions being satisfied or waivedany one of which may be waived in writing by Corn Products:
(ai) The representations and warranties of the each Parent Company set forth contained in Section 3.1 hereof this Agreement shall be true and correct as at the time of the Initial Closing Date as though made on such date (except for those representations and warranties made as of a specific date), with such exceptions as, individually or in all material respects.the aggregate, would not have a Material Adverse Effect;
(bii) The Company Each of the Parent Companies shall have performed or complied in all material respects with its covenants hereunder as all of their covenants, agreements and obligations herein contained, to the extent the same are required to be performed or complied with at or prior to the time of the Initial Closing Date.Closing;
(ciii) The Company All approvals and consents shall have duly executed been obtained from the Mexican Federal Competition Commission and delivered the Collaboration AgreementMexican Foreign Investment Commission, such agreement shall continue and from the Persons and Individuals listed in Schedule 4.4, in form and substance reasonably satisfactory to Corn Products' legal counsel, necessary in order to permit the transactions contemplated herein to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with completed at the Initial Closing)., the First Put Closing and the Second Put Closing without adversely affecting, modifying, amending, varying or renegotiating in a way that is not insignificant to Corn Products in its judgment exercised in good faith or resulting in the termination or cancellation of, this Agreement or any Parent Company Ancillary Agreements;
(div) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals waiting period under the HSR Act for Gilead’s purchase shall have expired or terminated, and no (A) temporary restraining order, preliminary or permanent injunction or other order issued by a court of competent jurisdiction, or (B) other legal restraint or prohibition, including those arising as a result of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement failure to obtain or maintain any necessary governmental approval or consent, shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result be in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent effect preventing or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(i) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent.
(j) NYSE shall have raised no objection to affecting the consummation of the transactions contemplated by this Agreement or any Parent Company Ancillary Agreements or Corn Products Ancillary Agreements;
(including v) All of the issuance Parent Company Ancillary Agreements required to be delivered at the Initial Closing shall have been duly executed and delivered by the parties thereto;
(vi) All of Additional Shares hereunder)the directors and officers of Aracorn, the Investor Rights Agreement and Joint Venture or Poliecsa set forth on Schedule 3.4 shall have tendered their resignation from each such position held by them with the Collaboration Agreement applicable corporation; and
(vii) the Bylaws of the Joint Venture shall have been amended to read in the absence of stockholder approval of such transactionstheir entirety as set forth in Exhibit F hereto.
2.7.2 (b) The obligations of each of the Company hereunder in connection with Parent Companies to consummate the Initial Closing are subject to the satisfaction, on or prior to the Initial Closing Date, of the following conditions being satisfied or waivedany one of which may be waived in writing by either of the Parent Companies:
(ai) The representations and warranties of Gilead set forth Corn Products contained in Section 3.2 hereof this Agreement shall be true and correct as at the time of the Initial Closing Date as though made on such date, with such exceptions as, individually or in the aggregate, would not have a Material Adverse Effect;
(ii) Corn Products shall have performed or complied in all material respects.respects with all of its covenants, agreements and obligations herein contained, to the extent the same are required to be performed or complied with at or prior to the time of the Initial Closing;
(biii) Gilead All approvals and consents shall have been obtained from the Mexican Federal Competition Commission and the Mexican Foreign Investment Commission and from the Persons and Individuals listed in Schedule 4.4, in form and substance reasonably satisfactory to Parent Companies' legal counsel, necessary in order to permit the transactions contemplated herein to be completed at the Initial Closing, the First Put Closing and the Second Put Closing without adversely affecting, modifying, amending, varying or renegotiating in a way that is not insignificant to the Parent Companies in their judgment exercised in good faith or resulting in the termination or cancellation of this Agreement or any Corn Products Ancillary Agreements;
(iv) The waiting period under the HSR Act shall have expired or terminated, and no (A) temporary restraining order, preliminary or permanent injunction or other order issued by a court of competent jurisdiction, or (B) other legal restraint or prohibition, including those arising as a result of the failure to obtain or maintain any necessary governmental approval or consent, shall be in effect preventing or materially affecting the consummation of the transactions contemplated by this Agreement or any Parent Company Ancillary Agreements or Corn Products Ancillary Agreements;
(v) All of the Corn Products Ancillary Documents required to be delivered at the Initial Closing shall have been duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing)by parties thereto.
(c) Gilead shall have duly executed and delivered the Investor Rights Agreement.
(d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.
Appears in 1 contract
Sources: Transaction Agreement (Corn Products International Inc)
Conditions to the Initial Closing. 2.7.1 The obligations obligation of Gilead each Buyer hereunder in connection with to consummate the Financing and the Conversion at the Initial Closing are is subject to the following conditions being satisfied satisfaction, at or waived:
(a) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) The Company shall have complied in all material respects with its covenants hereunder as of before the Initial 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.
(ci) The Company shall have duly executed and delivered to such Buyer (I) the Collaboration AgreementSecurities that are being acquired by the Buyers at the Closing pursuant to Section 1(b), (II) each of the other Transaction Documents to which the Company is a party and (III) such agreement shall continue other certificates or instruments required to be delivered by it pursuant to the Transaction Documents in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously connection with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent irrevocable written Instructions, in the form of Exhibit C attached hereto, which instructions shall have been executed by the Company and delivered to issue and acknowledged in writing by the Initial Shares to Gilead in a form and substance acceptable to the Transfer AgentCompany’s transfer agent.
(jiii) NYSE Such Buyer shall have raised no objection received the opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder)Company, the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct dated as of the Initial Closing Date Date, in all material respectssubstantially the form of Exhibit D attached hereto.
(iv) The Company shall have delivered to such Buyer copies of (a) the Certificate of Incorporation of the Company and (b) Gilead shall have duly executed and delivered the Collaboration Agreementcertificate of incorporation of Aeolus Sciences, such agreement shall continue to be in full force and effect and Inc., each as certified by the Effective Date Secretary of State of the State of Delaware within ten (under and as defined therein10) shall have occurred (or shall occur simultaneously with Business Days of the Initial Closing)Closing Date.
(cv) Gilead The Company shall have duly executed delivered to such Buyer copies of certificates of good standing for each of the Company and delivered Aeolus Sciences, Inc., each as certified by the Investor Rights AgreementSecretary of State of the State of Delaware within five (5) Business Days of the Initial Closing Date.
(dvi) All required Antitrust Approvals under The Company shall have delivered to such Buyer a certificate, executed by the HSR Act for Gilead’s purchase Secretary of the Company and dated as of the Initial Shares and Closing Date, as to (i) the transactions contemplated resolutions consistent with Section 3(b) as adopted by the Collaboration Agreement and Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale Certificate of Incorporation of the Initial Shares shall not result in a breach Company, (iii) the certificate of Law.
incorporation of Aeolus Sciences, Inc., (fiii) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement or Bylaws of the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.Company and
Appears in 1 contract
Sources: Securities Purchase and Exchange Agreement (Aeolus Pharmaceuticals, Inc.)
Conditions to the Initial Closing. 2.7.1 The obligations obligation of Gilead each Buyer hereunder in connection with to consummate the Financing at the Initial Closing are is subject to the following conditions being satisfied satisfaction, at or waived:
(a) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) The Company shall have complied in all material respects with its covenants hereunder as of before the Initial 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.
(ci) The Company shall have duly executed and delivered to such Buyer (I) the Collaboration AgreementSecurities that are being acquired by the Buyers at the Closing pursuant to Section 1(b), (II) each of the other Transaction Documents to which the Company is a party and (III) such agreement shall continue other certificates or instruments required to be delivered by it pursuant to the Transaction Documents in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously connection with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent irrevocable written Instructions, in the form of Exhibit C attached hereto, which instructions shall have been executed by the Company and delivered to issue and acknowledged in writing by the Company’s transfer agent.
(iii) Such Buyer shall have received the opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, dated as of the Initial Shares Closing Date, in substantially the form of Exhibit D attached hereto.
(iv) The Company shall have delivered to Gilead such Buyer copies of (a) the Certificate of Incorporation of the Company and (b) the certificate of incorporation of Aeolus Sciences, Inc., each as certified by the Secretary of State of the State of Delaware within ten (10) Business Days of the Initial Closing Date.
(v) 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 the Initial 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 Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company, (iii) the certificate of incorporation of Aeolus Sciences, Inc., (iii) the Bylaws of the Company and (iv) the bylaws of Aeolus Sciences, Inc., each as in effect at the Initial Closing, which certificate shall be in form and substance acceptable to the Transfer AgentBuyers and shall provide specimen signatures for each of the officers or directors of the Company who execute and deliver this Agreement or any other Transaction Document to be delivered at the Initial Closing by or on behalf of the Company (in each case, pursuant to the authorization of the Company’s board of directors).
(j) NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(avii) The representations and warranties of Gilead set forth the Company shall be true and correct in Section 3.2 hereof 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 at all times through and including as of the Initial 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 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 the Initial Closing Date 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 the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, in all material respectsform and substance acceptable to the Buyers.
(bviii) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date The Common Stock (under and as defined thereinI) shall be designated for quotation or listed on the Principal Market and (II) shall not have occurred (been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall occur simultaneously with suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing)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.
(cix) Gilead The Company shall have duly executed obtained all governmental, regulatory or third party consents and delivered approvals, if any, necessary for the Investor Rights Agreementsale of the Securities.
(dx) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement as such Buyer or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authorityits counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Aeolus Pharmaceuticals, Inc.)
Conditions to the Initial Closing. 2.7.1 The obligations of Gilead hereunder in connection with each Party to consummate the Initial Closing are transactions contemplated by this Article III shall be subject to the fulfillment, at or prior to the Initial Closing, of each of the following conditions being satisfied or waivedconditions:
(a) The the Company has entered into Demonstration Offtake Agreements that satisfy the Minimum Initial Offtake Requirement;
(b) no Governmental Authority shall have enacted, issued, promulgated, enforced, or entered, or has commenced proceedings to enforce or enter, any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement or the other Transaction Agreements illegal, otherwise restraining or prohibiting consummation of such transactions, or causing any of the transactions contemplated hereunder or thereunder to be rescinded following completion thereof;
(c) each Party shall have obtained all necessary internal approvals authorizing this Agreement, the other Transaction Agreements to which it is a party and the transactions contemplated hereby and thereby;
(d) the Company shall have taken all necessary stockholder and board action to, at the Initial Closing, (i) approve the Amended and Restated Bylaws, (ii) appoint the Board as contemplated by the Stockholders’ Agreement; provided, that [***], and (iii) take any other corporate action required to consummate the transactions contemplated by this Agreement and the other Transaction Agreements, including the redemption and cancellation of the Formation Shares as contemplated by Section 2.01(e);
(e) no Action shall have been commenced against a Party, which would prevent the Initial Closing and no injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated by the Transaction Agreements;
(f) the Company shall have filed the Amended and Restated Certificate of Incorporation as contemplated pursuant to Section 2.01(c);
(g) the representations and warranties of the Company set forth each Party contained in Section 3.1 hereof this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality) or in all material respects (in the case of any representation or warranty not qualified by materiality) on and as of the date hereof and on and as of the Initial Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all material respects.);
(bh) The Company each Party shall have duly performed and complied in all material respects with its covenants hereunder as of all agreements, covenants, and conditions required by this Agreement to be performed or complied with by it prior to or on the Initial Closing Date.;
(ci) The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be each closing deliverable set forth in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 3.05 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay at the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(i) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent.;
(j) NYSE shall have raised no objection to the consummation each of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(c) Gilead shall have duly executed and delivered the Investor Rights Agreement.
(d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement Investors shall have been obtained.approved by Battelle Memorial Institute as sublicensees under the License Agreement; and
(ek) The issuance and sale each of the Initial Shares Investors shall not result in a breach be satisfied with the employment status of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the intended executive officers of the Company.
(g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.
Appears in 1 contract
Conditions to the Initial Closing. 2.7.1 The obligations of Gilead hereunder in connection with Investor’s obligation to consummate the transactions contemplated at the Initial Closing are is subject to the satisfaction and fulfillment, prior to or on the Initial Closing Date, of each of the following conditions being satisfied precedent (any or all of which may be waived:, in whole or in part, by the Investor, which waiver shall be at the sole discretion of the Investor):
(a) The representations and warranties of the Company set forth in Section 3.1 hereof this Agreement and the Related Agreements shall be true and correct as of the Initial Closing Date (except for representations and warranties that address matters only as of a specified date, which representations and warranties shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality, which representations and warranties as so qualified shall be true and correct in all respects) with respect to such specified date) as though such representations and warranties were made on and as of such date.
(b) The Company No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of any of the transactions contemplated hereby or in any of the Related Agreements shall be in effect, nor shall any action have been taken by any Governmental Entity seeking any of the foregoing, and no statute, rule, regulation or order shall have complied in all material respects with its covenants hereunder as been enacted, entered, enforced or deemed applicable to any of the Initial Closing Datetransactions contemplated hereby or in any of the Related Agreements that makes the consummation of any of such transactions illegal.
(c) The Company shall have duly executed and delivered From the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with date hereof through the Initial Closing), there will have been no Material Adverse Effect.
(d) The Company shall have duly executed performed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares complied with all covenants, agreements and the transactions contemplated by the Collaboration undertakings set forth in this Agreement and the Investor Rights Related Agreement shall have been obtained.
(f) The issuance required to be performed and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered complied with by the Company it at or prior to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(i) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent.
(j) NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to and has delivered each of the following conditions being satisfied or waived:
(a) The representations agreements, instruments and warranties of Gilead other documents set forth in Section 3.2 hereof shall be true and correct as of the Initial Closing Date in all material respects2.4.
(b) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(c) Gilead shall have duly executed and delivered the Investor Rights Agreement.
(d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.
Appears in 1 contract
Conditions to the Initial Closing. 2.7.1 The obligations of Gilead hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) The Company shall have complied in all material respects with its covenants hereunder as of the Initial Closing Date.
(c) The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(i) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent.
(j) NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waivedmet:
(ai) The the representations and warranties of Gilead set forth made in Section 3.2 hereof shall be of the Agreement qualified as to materiality are true and correct complete as of the date of the Initial Closing Date and the representations and warranties made in Section 3.2 of the Agreement not so qualified are true and complete in all material respects as of the Initial Closing Date Date;
(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the date of the Initial Closing shall have been performed; and
(iii) the delivery by the Purchaser of the items set forth in all material respectsSection 2.1(b) of this Agreement.
(b) Gilead shall have duly executed and delivered The obligations of the Collaboration Agreement, such agreement shall continue to be Purchaser hereunder in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously connection with the Initial Closing).Closing are subject to the following conditions being met:
(ci) Gilead shall have duly executed the representations and delivered warranties made in Section 3.1 of the Investor Rights Agreement.
(d) All required Antitrust Approvals under Agreement qualified as to materiality are true and complete as of the HSR Act for Gilead’s purchase date of the Initial Shares Closing Date and the representations and warranties made in Section 3.1 of the Agreement not so qualified are true and complete in all material respects as of the Initial Closing Date;
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the date of the Initial Closing shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.1(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) all consents of any Person necessary to the consummation of the transactions contemplated by the Collaboration this Agreement and the Investor Rights Agreement other Transaction Documents, including consents from parties to loans, contracts, leases or other agreements and consents from governmental agencies, whether federal, state or local shall have been obtained, and a copy of each such consent shall have been provided to Purchaser at or prior to the date of the Initial Closing; provided, however, that Purchaser hereby agrees that no consent is required from:
(A) Pacific Road Capital A Pty. Limited, as trustee for Pacific Road Resources Fund A (“Fund A”), Pacific Road Capital B Pty. Limited, as trustee for Pacific Road Resources Fund B (“Fund B”), and Pacific Road Capital Management G.P. Limited, as General Partner of Pacific Road Resources Fund L.P. (“PR Partnership” and, together with Fund A and Fund B, the “A▇▇▇▇▇▇ ▇▇▇▇▇▇▇”);
(B) Centurion Private Equity, LLC; and
(C) the “Purchasers” under Securities Purchase Agreements between the Company and such Purchasers with respect to the Company’s offering of Units of its securities for $0.27 per Unit, with each “Unit” consisting of (x) one share of Common Stock and (y) a warrant to purchase one-half of a share of Common Stock at an exercise price of $0.40 per whole share.
(evi) The issuance and sale from the date hereof to the date of the Initial Shares Closing, trading in the Common Stock shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered suspended or ceased by Gilead the Commission, a Canadian securities regulatory authority or the Company’s principal Trading Market, and, at any time prior to the Company.
(g) No proceeding challenging this Agreement Initial Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or the transactions contemplated herebylimited, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, minimum prices shall not have been instituted established on securities whose trades are reported by such service, or be pending before on any Governmental AuthorityTrading 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 reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Initial Closing.
Appears in 1 contract
Conditions to the Initial Closing. 2.7.1 (a) The obligations of Gilead hereunder in connection with the Company and the Purchasers to consummate the transactions contemplated hereby at the Initial Closing are subject to the satisfaction of the following conditions being satisfied conditions: no temporary restraining order, preliminary or waivedpermanent injunction or other order or decree which prevents the consummation of the transactions contemplated hereby shall have been issued and remain in effect, and no statutes, rule or regulation shall have been enacted by any governmental authority (of the United States or otherwise) which prevents the consummation of the transactions contemplated hereby; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(b) The obligations of the Purchasers to consummate the transactions contemplated hereby at the Initial Closing is subject to the satisfaction or waiver, on or prior to the date of the Initial Closing, of the following conditions:
(ai) The the representations and warranties of the Company set forth in Section 3.1 hereof 2 of this Agreement shall be true and correct in all material respects as of the date when made and (unless made as of a specified date) as of the date of the Initial Closing; any and all documents or other materials provided to the Purchasers for review by the Company shall, in the sole judgment and discretion of the Purchasers, not contain any material misstatements or fail to contain any material fact; and the Company shall have performed in all material respects its covenants set forth in this Agreement to be performed prior to the date of the Initial Closing Date and shall not have taken any action which (if any shares of Series D Preferred Stock were outstanding) would violate any provision of the Certificate of Incorporation (including the Certificate of Designation) or this Agreement or the Ancillary Documents, as the case may be (and at the Initial Closing the Company shall deliver to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in all material respects.this clause (i));
(bii) The Company and the Pequot Entities shall have complied entered into the Registration Rights Agreement in the form of Exhibit C hereto (the "Registration Rights Agreement" and, together with all material respects with its covenants hereunder as other contracts, agreements, schedules, certificates and other documents (including, but not limited to, the Certificate of Designation, the Initial Closing Date.
(c) The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect Consulting Agreement and the Effective Date (under and as defined thereinWarrants) shall have occurred (being delivered pursuant to or shall occur simultaneously in connection with this Agreement by any party hereto at or prior to the Initial Closing, the "Ancillary Documents").
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(iiii) The Company shall have delivered to the Transfer Agent irrevocable written instructions Pequot Entities long-form certificates of good standing from the jurisdictions set forth on Schedule 1.3(b) with respect to issue the Company and the Subsidiary dated as of a date no earlier than ten days prior to the Initial Shares Closing.
(iv) The Amended and Restated Certificate of Incorporation of the Company, as amended, shall have been amended and supplemented by a Certificate of Designation substantially in the form of Exhibit D hereto setting forth the rights and preferences of the Series D Preferred Stock (the "Certificate of Designation"), and the Certificate of Designation shall have been filed with, and approved by, the Secretary of State of the State of Delaware (the Amended and Restated Certificate of Incorporation, as amended, including such Certificate of Designation, the "Certificate of Incorporation");
(v) The Common Stock to Gilead be issued upon conversion of the Series D Preferred Stock and the exercise of the Warrants shall have been approved for quotation on the Nasdaq Small Cap Market ("NASDAQ"), subject to official notice of issuance;
(vi) The Company shall have delivered to the Pequot Entities a certificate duly executed by its Secretary, satisfactory in a form and substance acceptable to the Transfer AgentPequot Entities, certifying (i) a copy of its organizational documents including the Certificate of Incorporation and the by-laws of the Company (the "By-Laws"), (ii) resolutions authorizing the transaction and (iii) incumbency matters.
(jvii) NYSE The Pequot Entities shall have raised no objection receive from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, an opinion addressed to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder)Pequot Entities, the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct dated as of the Initial Closing Date Closing, satisfactory in all material respects.
(b) Gilead form and substance to the Pequot Entities, which shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date form of Exhibit E attached hereto (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing"Opinion").
(cviii) Gilead Pursuant to the terms of the Certificate of Designation, in the event that the Pequot Entities shall designate a person to serve on the Board of Directors of the Company (the "Board") (who, if such person is not an employee of Dawson Samberg Capital Management, Inc. ("DSCM"), the investment manager for each of the Pequot Entities, shall be reasonably acceptable to the Company), such designee shall have duly executed and delivered been elected to the Investor Rights AgreementBoard effective, without any further action, as of the date of the Initial Closing.
(dix) All required Antitrust Approvals under the HSR Act for Gilead’s purchase The Certificate of Incorporation of the Company shall reflect that the size of the Board shall be fixed at 6 members (not including the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtainedDesignee) with a maximum of 13 directors.
(ex) The issuance Company shall have obtained, with financially sound and sale of reputable insurers, directors' and officers' liability insurance in an amount not less than $3,000,000 or a binder with respect to such insurance in form satisfactory to the Initial Shares shall not result in a breach of LawPequot Entities.
(fxi) All closing deliverables required under Section 2.5.2 The Company shall have been delivered by Gilead to entered into a consulting agreement with ▇▇▇▇▇ ▇▇▇▇▇▇ ("Consulting Agreement"), in the Companyform of Exhibit F attached hereto.
(gxii) No proceeding challenging this Agreement or Without limiting the transactions contemplated herebygenerality of Section 1.3(b)(i), or seeking to prohibitin the sole judgment and discretion of the Purchasers, alter, prevent or materially delay the applicable Closing, no Material Adverse Effect shall have been instituted occurred since the date hereof nor shall any event or events have occurred since the date hereof which could reasonably be pending before any Governmental Authorityexpected to have a Material Adverse Effect nor shall a Material Adverse Change have occurred (x) in the facts and information regarding the Business, the Company and the Subsidiary, (y) in the assets of the Business, the Company and the Subsidiary and (z) in the Company's ability to operate in accordance with the financial projections set forth in Schedule 2.6.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Netegrity Inc)
Conditions to the Initial Closing. 2.7.1 The obligations obligation of Gilead each --------------------------------- Investor hereunder to exchange its Old Preferred Shares and Old Warrants for Exchange Preferred Shares, to permit the Company to redeem the applicable number of Old Preferred Shares (as set forth in connection with Section 1(c)), to purchase the applicable number of New Common Shares (as set forth in Section 1(b)) and to convert Old Preferred Shares into the Mandatory Conversion Shares (as set forth in Section 2(b)) at the Initial Closing are is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions being satisfied or waivedare for each Investor's sole benefit and may be waived by such Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(ai) The Company shall have executed each of the Transaction Documents and delivered the same to such Investor.
(ii) The Exchange Certificate of Amendment, shall have been filed with the Department of State of the State of New York, and a copy thereof certified by such Department of State shall have been delivered to such Investor.
(iii) The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market.
(iv) The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied 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 the Initial Closing Date. Such Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Investor including, without limitation, an update as of the Initial Closing Date regarding the representation contained in all material respectsSection 5(c) above.
(bv) Such Investor shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP dated as of the Initial Closing Date, substantially in the form of Exhibit E, attached hereto. ---------
(vi) The Company shall have complied executed and delivered to such Investor the Stock Certificates for the Exchange Preferred Shares (in all material respects such denominations as such Investor shall request) for the Exchange Preferred Shares to be issued to such Investor at the Initial Closing in exchange for its Old Preferred Shares and Old Warrants.
(vii) The Company shall have executed and delivered to such Investor the Stock Certificates representing the number of such Investor's Old Preferred Shares which are not being redeemed pursuant to Section 1(c), exchanged for Exchange Preferred Shares pursuant to Section 1(a) or converted into Mandatory Conversion Shares pursuant to Section 2(a) at the Initial Closing.
(viii) The Company shall have executed and delivered to such Investor stock certificates representing the number of New Common Shares being purchased by such Investor at the Initial Closing.
(ix) The Company shall have executed and delivered to such Investor stock certificates representing the number of Mandatory Conversion Shares issuable pursuant to the Conversion of the Old Preferred Shares being converted by such Investor at the Initial Closing.
(x) The Board of Directors of the Company shall have adopted resolutions consistent with Section 5(b) above and in a form reasonably acceptable to such Investor (the "Resolutions").
(xi) As of the Initial Closing Date, the Company shall have reserved out of its covenants hereunder authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Exchange Preferred Shares, at least 7,020,000 shares of Common Stock.
(xii) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agent.
(xiii) The Company shall have delivered to such Investor a certificate evidencing the incorporation and good standing of the Company in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Initial Closing Date.
(c) The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(d) The Company shall have duly executed and delivered the Investor Rights Agreement.
(e) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(f) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(g) All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority.
(ixiv) The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue such Investor a secretary's certificate, dated as the Initial Shares Closing Date, as to Gilead (A) the Resolutions, (B) the Certificate of Incorporation and (C) the Bylaws, each as in a form and substance acceptable to effect at the Transfer AgentInitial Closing.
(jxv) NYSE The Company shall have raised no objection made all filings, if any, under all applicable federal and state securities laws necessary to consummate the consummation issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xvi) The Company shall have delivered to such Investor $1,000, by wire transfer of immediately available funds, for each of the Old Preferred Shares being redeemed by the Company from such Investor (as set forth in Section 1(c)) at the Initial Closing.
(xvii) The Company shall have delivered to such Investor such other documents relating to the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the as such Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactionsor its counsel may reasonably request.
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct as of the Initial Closing Date in all material respects.
(b) Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing).
(c) Gilead shall have duly executed and delivered the Investor Rights Agreement.
(d) All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained.
(e) The issuance and sale of the Initial Shares shall not result in a breach of Law.
(f) All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company.
(g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority.
Appears in 1 contract
Sources: Exchange, Redemption and Conversion Agreement (Netplex Group Inc)