Option Closing To the extent the Option is exercised, delivery of the Option Securities against payment by the Underwriters (in the manner and at the location specified above) shall take place at the time and date (which may be the Closing Date, but not earlier than the Closing Date) specified in the Option Notice.
Closing Events At the Closing, each of the respective parties hereto shall execute, acknowledge and deliver (or shall cause to be executed, acknowledged, and delivered) any agreements, resolutions, rulings, or other instruments required by this Plan to be so delivered at or prior to Closing, together with such other items as may be reasonably requested by the parties hereto and their respective legal counsel in order to effectuate or evidence the transaction contemplated hereby.
The Optional Shares; Option Closing Date In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of [•] Optional Shares from the Company at the purchase price per share to be paid by the Underwriters for the Firm Shares. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representatives and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representatives may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
Second Closing The second closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the transactions contemplated hereby shall be held at the offices of Fenwick & West LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ within one business day following the date on which the last of the conditions set forth in Articles 6 and 7 (including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement (such date, the “Second Closing Date” and together with the Initial Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle amount of the Outstanding Convertible Notes as set forth next to such Investor’s name on Schedule I-B hereto. At the Second Closing, the Company shall deliver to each Investor a single stock certificate representing the number of Shares purchased by such Investor at the Second Closing, as set forth next to such Investor’s name on Schedule I-B hereto, such stock certificate to be registered in the name of such Investor, or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor at the Second Closing. Each Investor agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on Schedule I-B is cancelled as of the Second Closing and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as of the Second Closing Date; provided that to the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as of the Second Closing Date, then the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby.
Subsequent Closing Upon receipt of Shareholder Approval, the completion of the purchase and sale of the Subsequent Shares and Subsequent Warrants (the “Subsequent Closing,” together with the Original Closing, the “Closings”) shall occur on a date mutually agreed by the Investor, the Company and the Placement Agent (the “Subsequent Closing Date”), which date shall not be later than the earlier of two Business Days following receipt of the Shareholder Approval and 60 days following the Initial Closing Date (the “Subsequent Outside Date”). At the Subsequent Closing, the Company shall deliver to the Investor one or more certificates representing the number of Subsequent Shares and Subsequent Warrants, respectively, set forth in paragraph 2(b) of the Securities Purchase Agreement, each such certificate to be registered in the name of the Investor or, if so indicated on the Certificate Questionnaire, substantially in the form attached hereto as Exhibit B, in the name of a nominee designated by the Investor. In exchange for the delivery of the certificates representing such Subsequent Shares and Subsequent Warrants, the Investor shall deliver the Subsequent Purchase Price to the Company by wire transfer of immediately available funds pursuant to the Company’s written instructions.
5.1 The Company’s obligation to issue and sell the Subsequent Shares and Subsequent Warrants to the Investor shall be subject to the following conditions, any one or more of which may be waived by the Company:
(a) prior receipt by the Company of an executed copy of this Agreement;
(b) the accuracy in all material respects when made and on the Subsequent Closing Date of the representations and warranties made by the Investor in this Agreement and the fulfillment of the obligations of the Investor to be fulfilled by it under this Agreement on or prior to the Subsequent Closing in all material respects;
(c) the execution and delivery by the Investor of the Registration Rights Agreement;
(d) prior receipt by the Company of the Subsequent Purchase Price;
(e) the execution and delivery by the Investor of a cross receipt, substantially in the form attached hereto as Exhibit I (the “Subsequent Cross Receipt”), evidencing receipt of the Subsequent Shares and Subsequent Warrants;
(f) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into the Agreements or to consummate the transactions contemplated hereby and thereby; and
(g) the waiting period applicable to the Subsequent Closing under the HSR Act, if any, shall have expired or been earlier terminated.
5.2 The Investor’s obligation to purchase the Subsequent Shares and Subsequent Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor:
(a) the delivery to the Investor of a legal opinion, dated the Subsequent Closing Date, from counsel to the Company, substantially in the form attached hereto as Exhibit G;
(b) the accuracy in all material respects of the representations and warranties made by the Company in this Agreement on the date hereof and, if different, on the Subsequent Closing Date;
(c) the execution and delivery by the Company of the Registration Rights Agreement,
(d) the fulfillment of the obligations of the Company to be fulfilled by it under this Agreement on or prior to the Subsequent Closing Date;
(e) the execution and delivery by the Company of the Subsequent Cross Receipt evidencing receipt of the Subsequent Purchase Price;
(f) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into such Agreements or to consummate the transactions contemplated hereby and thereby;
(g) the completion of the Second Humble Transaction, to occur simultaneously with the Subsequent Closing;
(h) the delivery to the Investor by the Secretary or Assistant Secretary of the Company of a certificate stating that the conditions specified in this paragraph have been fulfilled; and
(i) the waiting period applicable to the Subsequent Closing under the HSR Act, if any, shall have expired or been earlier terminated.
5.3 In the event that the Subsequent Closing does not occur on or before the Subsequent Outside Date as a result of the Company’s failure to satisfy any of the conditions set forth above (and such condition has not been waived by the Investor), the Company shall return any and all funds paid hereunder to the Investor no later than one (1) Business Day following the Subsequent Outside Date and the Investor shall have no further obligations hereunder.