Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer's sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company and 7(beach of its Subsidiaries shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) beloweach of the Transaction Documents, until April 30(B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), 2018 (the "being purchased by such Buyer at such Additional Closing Deadline"), each pursuant to this Agreement and (C) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at such Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices opinion of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ W▇▇▇▇▇ ▇▇▇▇▇▇L.L.P., ▇▇▇ ▇▇▇▇the Company's outside counsel, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇dated as of such Additional Closing Date, in substantially the form of Exhibit G attached hereto.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit F attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its U.S. Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction or a bring down of such good standing from Incorporating Services, Ltd., as of a date within ten (10) days of such Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's and each of its U.S. Subsidiaries' qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and its U.S. Subsidiaries conduct business or a bring down of such good standing from Incorporating Services, Ltd., as of a date within ten (10) days of such Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of its U.S. Subsidiaries (other than the Subsidiaries formed in the State of Florida) as certified by the Secretary of State (or comparable office) of the jurisdiction of formation of the Company and each of its Subsidiaries within ten (10) Business Days of such Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of such Additional Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's and each of its Subsidiaries' Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and each of its Subsidiaries and (iii) the Bylaws of the Company and each of its Subsidiaries, each as in effect at such Additional Closing, in the form attached hereto as Exhibit H.
(viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects) as of the date when made and as of such Additional 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 in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects) as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit I.
(ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock issued and outstanding as of a date within five (5) days of such Additional Closing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of such Additional 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 such Additional 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.
(xi) The Company shall have delivered to each Buyer the Lock-up Agreements executed and delivered by each of the Persons listed on Schedule 7(a)(xi).
(xii) The Company shall have obtained all governmental, regulatory, corporate or third party consents and approvals, if any, necessary for the sale of the Securities.
(xiii) The Company shall have submitted to the Principal Market a Listing of Additional Shares notification in connection with the transactions contemplated hereby and the Principal Market shall have approved, orally or in writing, the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase Additional Notes and the Shares from the Company at any Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Initial Closing shall have occurred.
(ii) The representations and warranties of the Company herein (including any exceptions thereto contained in the schedules hereto) shall be true and correct as of the date when made and as of such Additional 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 date), provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company and its Subsidiaries 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 such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Additional Closing Date, to the foregoing effect (including with respect to the satisfaction (or waiver) of the conditions set forth in Sections 6(bSection (b)(ii)) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at as to such Buyer's sole option, to require the Company to issue and sell to other matters as may be reasonably requested by such Buyer, and such Buyer shall have the right, to purchase from the Company up to including an aggregate principal amount of Additional Notes and related Additional Warrants update as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(h), 3(i), 3(o), 3(s), 3(t), 3(v), 3(y) and 3(aa) hereto.
(iii) The Company shall have executed and delivered to such Buyer the Notes and the Share Certificates (in such denominations as such Buyer shall request) for the Additional Notes and the Shares to be issued to such Buyer at such Additional Closing.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the offices incorporation and good standing of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇the Company and each Subsidiary in such entity’s state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state or jurisdiction of incorporation or organization as of a date within ten (10) days of the Additional Closing Date.
(v) The Company shall have made all filings under all applicable U.S. federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(vi) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cumulus Investors LLC), Securities Purchase Agreement (Averion International Corp.)
Additional Closing Date. Subject The obligation of each Buyer ----------------------- hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before each of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline")Date, of each Buyer shall have of the rightfollowing conditions, at such provided that these conditions are for each Buyer's sole option, to require the Company to issue benefit and sell to such Buyer, and may be waived by such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name at any time in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth its sole discretion:
(i) the aggregate principal amount The Certificate of Additional Notes Designations, shall be in full force and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount effect and shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on have been amended, without the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (knowledge or waiver) consent of the conditions set forth in Sections 6(b) and 7(b) belowBuyers, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and since the Initial Closing Date, each and a "Closing Date"copy thereof certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be 10:00 a.m., New York City time, designated for quotation on The Nasdaq SmallCap Market or The Nasdaq National Market or listed on the date specified NYSE, and shall not have been suspended from trading on or delisted from such exchanges nor shall delisting or suspension by such exchanges have been threatened either (A) in writing by such exchanges or (B) by falling below the applicable Buyer Additional Closing Notice (or minimum listing maintenance requirements of such other date exchanges and time as is mutually agreed to by all of the Buyers Conversion Shares and the Company). The location Warrant Shares issuable upon conversion or exercise of such the Additional Preferred Shares and the related Warrant, as the case may be, to be sold at the Additional Closing shall be listed upon The Nasdaq National Market or the NYSE.
(iii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the offices Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of SDesignations to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect which also shall include an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of Barack ▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ dated as of the Additional Closing Date in substantially the form of Exhibit C attached hereto. ---------
(v) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates for the Additional Preferred Shares and the related Warrants being purchased by such Buyer at the Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares (without regard to any limitations on conversions) and 100% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants, including for such purposes the Additional Preferred Shares and related Warrants to be issued at such Additional Closing.
(viii) 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 and Shall be in effect as of the Additional Closing.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Additional Closing Date.
(x) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Additional Closing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Medcare Technologies Inc), Securities Purchase Agreement (Medcare Technologies Inc)
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount The obligation of Additional Notes and related Additional Warrants that such Buyer wishes Buyers hereunder to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than Preferred Shares at the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date are for sole benefit of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice Buyers and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from may be waived by a Buyer, deliver written notice thereof via facsimile with respect to it, at any time in its sole discretion:
A. The Certificate of Amendment shall be in full force and effect and shall not have been amended, without the knowledge or electronic mail and overnight courier to all other Buyers and consent of the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachBuyers, an "Additional Closing Date", and together with all Additional Closing Dates and since the Initial Closing Date, each and a "copy thereof certified by the Secretary of State of the State of New York shall have been delivered to Buyers.
B. The Common Stock shall be authorized for quotation on AMEX, and shall not have been suspended from trading on or delisted from such market, nor shall delisting or suspension by such market have been threatened in writing.
C. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true as of that date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Amendment to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date") . Buyer shall be 10:00 a.m.have received a certificate, New York City timeexecuted by the Chief Executive Officer of the Company, on dated as of the date specified in the applicable Buyer Additional Closing Notice (or such other date and time Date, to the foregoing effect which also shall include an update as is mutually agreed to by of the Buyers and the Company). The location of such Additional Closing Date regarding the representation contained in Section 3(c) above.
D. Buyers shall be at have received the offices opinion of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of the Additional Closing Date in substantially the form of Exhibit V attached hereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Andrea Electronics Corp)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), are for each Buyer shall have the right, at such Buyer's sole option, to require benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company to issue with prior written notice thereof:
(i) The Company shall have duly executed and sell delivered to such Buyer, and Buyer the Additional Preferred Shares (in such numbers as such Buyer shall have request) being purchased by such Buyer at the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") pursuant to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and this Agreement.
(ii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date that the Company will be required to sell such Additional Notes when made and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery as of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be entitled to cause the Company to consummate more than one (1true and correct as of such specified date) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose have performed, satisfied and complied in all material respects with the delivery covenants, agreements and conditions required by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachthe Transaction Documents to be performed, an "satisfied or complied with by the Company at or prior to the Additional Closing Date". Such Buyer shall have received a certificate, and together with all executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Dates and the Initial Closing Date, each a "Closing Date"to the foregoing effect and in the form attached hereto as Exhibit E.
(iii) The Common Stock (I) shall be 10:00 a.m., New York City time, designated for quotation or listed on the date specified Principal Market and (II) shall not have been suspended, as of the Additional 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 Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(iv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(v) The Certificate of Designations in the applicable Buyer Additional Closing Notice (or such other date form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at in full force and effect, enforceable against the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Company in accordance with its terms and shall not have been amended.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) The date and time of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 Additional Closing (the "Additional Closing Deadline")Date" and, each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to by the Company and each Buyer) after notification of satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 6(b) and 7(b) below as provided therein, provided that, unless waived by such Buyer at any time in its sole discretion, no Buyer shall be obligated to close earlier than the tenth (10th) Trading Day after the date on which both (1) the Stockholder Approval (as defined below) has been obtained and (2) one or more Registration Statements (as defined in the Registration Rights Agreement) covering all of the Registrable Securities (as defined in the Registration Rights Agreement) pursuant the Registration Rights Agreement has been declared effective by the SEC. The Company shall deliver a written notice (the "Company Additional Closing Notice"), providing whether the Company has satisfied the conditions to an Additional Closing set forth in Section 7(b). If the Company has not satisfied one or more conditions to the Additional Closing set forth in Section 7(b), the Company shall not be entitled to require the Buyers to purchase Additional Notes at such Additional Closing and no Buyer shall be required to purchase Additional Notes unless the Company)conditions to the Additional Closing set forth in Section 7(b) have been satisfied (or waived) prior to December 1, 2015, but each Buyer may elect, in such Buyer's sole and absolute discretion, by written notice to the Company (a "Buyer Additional Closing Notice") to waive any such condition or conditions, and may elect to purchase the Additional Notes as set forth opposite such Buyer's name in column (3)(b) of the Schedule of Buyers. The location of such the Additional Closing shall be at the offices of S▇▇▇▇▇▇▇ R▇▇▇▇ & Z▇▇▇▇▇ LLP, 9▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. As used herein "Trading Day" means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded; provided that "Trading Day" shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00 p.m., New York Time).
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer’s sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer The Company shall have the right, at such Buyer's sole option, to require the Company to issue duly executed and sell delivered to such Buyer, and Buyer the Additional Preferred Shares (in such numbers as such Buyer shall have request) being purchased by such Buyer at the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") pursuant to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and this Agreement.
(ii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date that the Company will be required to sell such Additional Notes when made and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery as of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be entitled to cause the Company to consummate more than one (1true and correct as of such specified date) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose have performed, satisfied and complied in all material respects with the delivery covenants, agreements and conditions required by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachthe Transaction Documents to be performed, an "satisfied or complied with by the Company at or prior to the Additional Closing Date". Such Buyer shall have received a certificate, and together with all executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Dates and the Initial Closing Date, each a "Closing Date"to the foregoing effect and in the form attached hereto as Exhibit E.
(iii) The Common Stock (I) shall be 10:00 a.m., New York City time, designated for quotation or listed on the date specified Principal Market and (II) shall not have been suspended, as of the Additional 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 Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(iv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(v) The Certificate of Designations in the applicable Buyer Additional Closing Notice (or such other date form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at in full force and effect, enforceable against the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Company in accordance with its terms and shall not have been amended.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable the First Additional Closing (each, an "the “First Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date"”) shall be 10:00 a.m., New York City time, on the date specified June 15, 2012 (or, in the applicable Buyer Additional Closing Notice (or any case, such other date and time as is mutually agreed to by the Buyers each Buyer and the Company), and the date and time of the Second Additional Closing (the “Second Additional Closing Date”, and together with the First Additional Closing Date, each an “Additional Closing Date”) shall be 10:00 a.m., New York City time, on September 14, 2012 (or, in any case, such other date and time as is mutually agreed to by each Buyer and the Company), in each case subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(d). The Initial Closing Date, the First Additional Closing Date, and the Second Additional Closing Date are each referred to herein as a “Closing Date”, and, whenever the context requires, each reference in this Agreement to “the Additional Closing Date” or words of like import shall mean and be a reference to “the applicable Additional Closing Date.” Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(d), on (i) the First Additional Closing Date, each Buyer shall purchase, and the Company shall sell to each such Buyer the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in column 3(b) and column 4(b) of the Schedule of Buyers, respectively, and (ii) the Second Additional Closing Date, each Buyer shall purchase, and the Company shall sell to each such Buyer the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in column 3(c) and column 4(c) of the Schedule of Buyers, respectively. If the Company has not satisfied one or more conditions to the applicable Additional Closing, subject to the conditions set forth in Section 6(b), each Buyer may elect, by written notice to the Company to waive any such condition or conditions, and may elect to purchase all or any portion of the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in the immediately preceding sentence. The location of such each Additional Closing shall be at the offices of S▇▇▇▇▇▇▇ R▇▇▇▇ & Z▇▇▇▇▇ LLP, 9▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Notwithstanding anything herein to the contrary, if the Second Additional Closing does not occur by September 30, 2012 (or such other date as is mutually agreed to by each Buyer and the Company) (x) but the Company has granted the Option (as defined below) to the Buyers by such date, then on September 30, 2012 (or such other date as is mutually agreed to by each Buyer and the Company) or (y) and the Company has not granted the Option to the Buyers by such date, then on December 31, 2012 (or such other date as is mutually agreed to by each Buyer and the Company) (the “Second Additional Closing Termination Date”) (i) the Company’s obligation to sell any Additional Preferred Shares and Additional Warrants, and the Buyer’s obligation to purchase such Additional Preferred Shares and Additional Warrants, shall terminate, and (ii) any “lock-up” or similar provisions contained in (a) Section 4(o)(ii) below, (b) Section 2(a)(xxiv)(J), the first sentence of Section 11, the third, fourth and sixth sentences of Section 12, Section 14(c), and Section 14(e) of the Certificate of Designations, and (c) in each of the Lock-Up Agreements (as defined below) (collectively, the “Lock-Up Provisions”) shall be deemed to have expired on the Second Additional Closing Termination Date. In addition, if pursuant to this paragraph the Buyers, in the aggregate as of the Second Additional Closing Date, have elected to purchase less than an aggregate of 1,500 Additional Preferred Shares at the Second Additional Closing, (i) the Company’s obligation to sell any Additional Preferred Shares and Additional Warrants not elected to be purchased, and the Buyer’s obligation to purchase such Additional Preferred Shares and Additional Warrants, shall terminate, and (ii) the Lock-Up Provisions shall be deemed to have expired on the Second Additional Closing Date.”
(c) Section 4(o)(ii) of the Purchase Agreement is hereby deleted in its entirety and amended and restated as follows: “From the date hereof until the later of (i) one hundred and twenty (120) days immediately following the First Additional Closing Date and (ii) December 31, 2012 in the event the Company has not granted the Option to the Buyers by September 30, 2012 (the “Trigger Date”), the Company will not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”), or be party to any solicitations or negotiations with regard to the foregoing.”
(d) Section 4(p) of the Purchase Agreement is hereby amended to replace the reference to “October 15, 2012” in the first sentence with “September 14, 2012”.
(e) Section 7(b)(xv) of the Purchase Agreement is hereby deleted in its entirety and amended and restated as follows:
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at each of the applicable Additional Closings is subject to the satisfaction (satisfaction, at or waiver) before each of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline")Dates, of each Buyer shall have of the rightfollowing conditions, at such provided that these conditions are for each Buyer's sole option, to require benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company to issue with prior written notice thereof:
(i) The Company shall have executed and sell delivered to such Buyer, and Buyer the Additional Notes (in such principal amounts as such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes request) and related Additional Warrants (in such principal amounts as set forth opposite such Buyer's name in columns (3)(bBuyer shall request) and 4(b), respectively, on being purchased by such Buyer at the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer applicable Additional Closing Notice") pursuant to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and this Agreement.
(ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Such Buyer shall be entitled to cause have received the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt opinions of a Buyer Additional Closing NoticeMilbank, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) belowTweed, Hadley & McCloy LLP, the Company shall (i) be required to sell to such BuyerCompany's outside counsel, and such Buyer shall be required to purchase from the CompanyBrian O'Donog▇▇▇, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇he ▇▇▇▇▇▇ R▇▇▇ & Zy's General Counsel, each dated as of the ▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇tional Closing Date, ▇▇▇ ▇▇▇▇in substantially the form of Exhibits H-1 and H-2 attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date and the Company shall cause its transfer agent to deliver a letter to such Buyer to that effect.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇to the extent required by Section 3(a), as of a date within 10 days of the applicable Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State of the State of New York as of a date within 10 days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within 10 days of the applicable Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company dated as of the applicable Additional Closing Date, as to (i) the Resolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the applicable Additional Closing, in the form attached hereto as Exhibit I.
(viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the applicable Additional 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 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 applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit J.
(ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the applicable Additional Closing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional 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 Additional 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.
(xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Additional Notes and the Additional Warrants being purchased at the applicable Additional Closing.
(xii) During the period beginning on the Initial Closing Date and ending on and including the applicable Additional Closing Date, neither the Company nor any of its Subsidiaries shall have been in default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Subsidiaries.
(xiii) During the period beginning on the Initial Closing Date and ending on and including the Additional Closing Date, there shall not have occurred (A) an Event of Default or (B) consummation of a Change of Control (as defined in the Notes) or a public announcement of a pending, proposed or intended Change of Control, which has not been abandoned or terminated prior to the applicable Additional Closing Date.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), are for each Buyer shall have the right, at such Buyer's sole option, to require benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company to issue with prior written notice thereof:
(i) The Company shall have duly executed and sell delivered to such Buyer, and Buyer the Additional Preferred Shares (in such numbers as such Buyer shall have request) being purchased by such Buyer at the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") pursuant to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and this Agreement.
(ii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date that the Company will be required to sell such Additional Notes when made and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery as of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be entitled to cause the Company to consummate more than one (1true and correct as of such specified date) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose have performed, satisfied and complied in all material respects with the delivery covenants, agreements and conditions required by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachthe Transaction Documents to be performed, an "satisfied or complied with by the Company at or prior to the Additional Closing Date". Such Buyer shall have received a certificate, and together with all executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Dates and the Initial Closing Date, each a "Closing Date"to the foregoing effect and in the form attached hereto as Exhibit E.
(iii) The Common Stock (I) shall be 10:00 a.m., New York City time, designated for quotation or listed on the date specified in Principal Market and (II) shall not have been suspended, as of the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to Date, by the Buyers and SEC or the Company). The location Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of such the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(iv) The Company shall be at have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the offices sale of Sthe Securities.
(v) Such Buyer shall have received the opinion of Fulbright & ▇▇▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLPL.L.P., 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇the Company's outside counsel, ▇▇▇ ▇▇▇▇dated as of the Additional Closing Date, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇in substantially the form of Exhibit D attached hereto.
(vi) The Series D Certificate of Designations in the form attached hereto as Exhibit A-1 shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended.
Appears in 1 contract
Additional Closing Date. Subject to timely delivery by the satisfaction (or waiver) Company to the Buyers of the conditions set forth in Sections 6(b) Additional Note Notice (as defined below), the date and 7(b) below, until April 30, 2018 time of the Additional Closing (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City timeTime, on the date specified in the applicable Buyer Additional Note Notice, subject to satisfaction (or waiver) of the conditions to the Additional Closing Notice set forth in Sections 6(b) and 7(b) and the conditions set forth in this Section 1(c) (or such other later date and time as is mutually agreed to by the Buyers Company and the CompanyBuyers). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), the Company shall issue and sell to such Buyer on one occasion $5,000,000 principal amount of Additional Notes on the Additional Closing Date, which date shall be 3 Business Days after delivery by the Company of written notice to such Buyer (the "Additional Note Notice") setting forth the satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 6(b) and 7(b) and the conditions set forth in this Section 1(c). The location Additional Note Notice shall be delivered by the Company (the date of delivery, the "Additional Note Notice Date") within 3 Business Days after satisfaction (or waiver) of such conditions. If the Company fails to deliver such notice, or at any time that the applicable Buyer waives any remaining conditions set forth in this Section 1(c), in Section 7(b) or otherwise, such Buyer shall be entitled to compel the Additional Closing by delivering a notice to the Company to such effect. Notwithstanding anything in this Agreement to the contrary, the Company shall not be entitled to require the purchase of the Additional Notes unless, in addition to the requirements of Sections 6(b) and 7(b), all of the following conditions are satisfied (or waived): (i) on each day during the period beginning on the first day of the Measuring Period (as defined below) and ending on the Additional Closing Date, the Initial Registration Statement (as defined in the Registration Rights Agreement) covering the Initial Registrable Securities (as defined in the Registration Rights Agreement) shall be effective and available for the sale of at least all of the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLPInitial Registrable Securities required to be included in such Initial Registration Statement and there shall not have been any Grace Periods (as defined in the Registration Rights Agreement); (ii) on each day during the period beginning on the date hereof and ending on the Additional Closing Date, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.the
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase its Additional Note and Warrants at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer’s sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer The Company shall have obtained Shareholder Approval.
(ii) There is then no Equity Conditions Failure (as defined in the right, at such Buyer's sole option, to require the Notes).
(iii) The Company to issue shall have duly executed and sell delivered to such Buyer, and : (A) the Additional Note (in such Buyer shall have the right, to purchase from the Company up to an aggregate original principal amount of Additional Notes and related Additional Warrants as is set forth opposite across from such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's ’s name in column (3)(b3) on of the Schedule of Buyers and which (Additional Closing)), (B) Series A Warrants (for such aggregate number of Additional Warrants shall not exceed the number of Additional Warrants Warrant Shares as is set forth opposite across from such Buyer's ’s name in column (4)(b4) on of the Schedule of Buyers (Additional Closing)), (C) Series B Warrants (for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in column (5) of the Schedule of Buyers (Additional Closing)) and (iiD) Series C Warrants (for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in column (6) of the date that the Company will be required to sell such Schedule of Buyers (Additional Notes and related Additional Warrants to Closing)), in each case, which are being purchased by such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than at the Additional Closing Deadline. No pursuant to this Agreement.
(iv) Such Buyer shall be entitled to cause have received the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt opinion of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of SCozen ▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ’▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇the Company’s counsel, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇dated as of the Additional Closing Date, in the form previously provided to the Company.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company, TerraSphere, Inc. and Converted Organics of California, LLC in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Additional Closing Date.
(viii) The Company shall have delivered to such Buyer a certificate, in the form previously provided to the Company, executed by the Secretary of the Company and dated as of the Additional 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 Articles of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing.
(ix) Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.
(x) The Company shall have delivered to such Buyer a letter from the Transfer Agent certifying the number of shares of Common Stock outstanding on the Additional Closing Date immediately prior to the Additional Closing.
(xi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional 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, except as disclosed in the SEC Documents, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(xii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market.
(xiii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(xiv) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
(xv) The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion Shares and the Warrant Shares.
(xvi) The Company shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Converted Organics Inc.)
Additional Closing Date. Subject The obligation of Buyer hereunder to purchase the Additional Preferred Shares and the Additional Warrants at the Additional Closings is subject to the satisfaction (satisfaction, at or waiver) before each of the Additional Closing Dates, of each of the following conditions, provided that these conditions are for Buyer's sole benefit and may be waived by Buyer at any time in its sole discretion:
(i) The Company shall have complied with the requirements of Section 1(c) and all of the Additional Notice Conditions set forth in Sections 6(bSection 1(d) and 7(b) below, until April 30, 2018 (shall have been satisfied as of the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Date.
(ii) the date that the Company will The Certificate of Amendment, shall be required to sell such Additional Notes in full force and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date effect and shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than have been amended, without the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (knowledge or waiver) consent of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and since the Initial Closing Date, each and a "Closing Date"copy thereof certified by the Secretary of State of the State of New York shall have been delivered to Buyer.
(iii) The Common Stock shall be 10:00 a.m.authorized for quotation on AMEX, New York City time, on the date specified trading in the applicable Buyer Common Stock issuable upon conversion of the Additional Closing Notice (or such other date and time as is mutually agreed Preferred Shares to be traded on AMEX shall not have been suspended by the Buyers SEC, AMEX and all of the Company). The location Conversion Shares issuable upon conversion of such the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon AMEX.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the offices Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of S▇Amendment to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect which also shall include an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above.
(v) Buyer shall have received the opinion of ▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ Wood LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇dated as of the Additional Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to Buyer the Stock Certificates for the Additional Preferred Shares and the Additional Warrants being purchased by Buyer at the Additional Closing.
(vii) The Board of Directors of the Company shall have adopted, ▇▇▇ ▇▇▇▇and shall not have amended, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇the Resolutions.
(viii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares (without regard to any limitations on conversions) and 100% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants, including for such purposes the Additional Preferred Shares and related Warrants to be issued at such Additional Closing.
(ix) 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 and shall be in effect as of the Additional Closing.
(x) The Company shall have delivered to Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Additional Closing Date.
(xi) The Company shall have delivered to Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of New York within ten days of the Additional Closing Date.
(xii) The Company shall have delivered to Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) By-laws and (D) the number of shares of Common Stock outstanding as of a date within five (5) days of the Additional Closing Date, each as in effect at the Additional Closing.
(xiii) The Company shall have delivered to Buyer such other documents relating to the transactions contemplated by this Agreement as Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Andrea Electronics Corp)
Additional Closing Date. Subject The obligation of any applicable Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at are for such Buyer's sole option, to require benefit and may be waived by such Buyer's at any time in its sole discretion by providing the Company to issue with prior written notice thereof:
(i) The Company shall have executed and sell delivered to such Buyer, and Buyer the Additional Notes (in such principal amounts as such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes request) and related Additional Warrants (in such principal amounts as set forth opposite such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of counsel reasonably acceptable to the Buyer's name , dated as of the Additional Closing Date, in columns form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit F attached hereto.
(3)(biii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may Company shall cause its transfer agent to deliver a notice letter to such Buyer to that effect.
(iv) The Company shall have delivered to such Buyer a "Buyer certificate evidencing the incorporation and good standing of the Company in its state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Additional Closing Notice"Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State of the State of Florida as of a date within 10 days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within 10 days of the Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company setting forth dated as of the Additional Closing Date, as to (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the CompanyResolutions, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G.
(viii) The representations and warranties of the Company will shall be required to sell such Additional Notes true and related Additional Warrants to such Buyer correct in all material respects (each, a "Buyer Additional Closing")except for representations and warranties that are qualified by materiality, which shall be true and correct in all respect) as of the date shall not be less than one (1) Trading Day after delivery when made and as of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one Date as though made at that time (1) Buyer Additional Closing except for such Buyer. Upon receipt representations and warranties that speak as of a Buyer Additional Closing Notice, subject to the satisfaction (or waiverspecific date) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one have performed, satisfied and complied in all material respects (1except for covenants, agreements and conditions that are qualified by materiality, which shall be complied with in all respect) Business Day after any such delivery publicly disclose with the delivery covenants, agreements and conditions required by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachthe Transaction Documents to be performed, an "satisfied or complied with by the Company at or prior to the Additional Closing Date". Such Buyer shall have received a certificate, and together with all executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Dates Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit H.
(ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Additional Notes and the Additional Warrants being purchased at the Additional Closing.
(xi) During the period beginning on the Initial Closing Date and ending on and including the Additional Closing Date, each a "Closing Date") neither the Company nor its Subsidiary shall have been in material default under any mortgage, indenture or instrument under which there may be 10:00 a.m.issued or by which there may be secured or evidenced any Indebtedness of the Company or its Subsidiary, New York City time, on nor shall there exist as of the date specified in the applicable Buyer Additional Closing Notice Date an event that with the passage of time or giving notice, and assuming it were not cured, would constitute such a default.
(or xii) The Company shall have delivered to such Buyer such other date and time documents relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase its Additional Note and Additional Warrant at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) No more than $1 million in aggregate principal amount of the Initial Notes remains outstanding.
(ii) As of the Additional Closing Date and as of the date of the Additional Closing Certificate (as defined below), no Equity Conditions Failure (as defined in the Notes) shall exist.
(iii) Such Buyer shall have received a certificate (the “Additional Closing Certificate”), in form and substance reasonably satisfactory to such Buyer, executed by the Chief Executive Officer of the Company, no more than thirty (30) Trading Days and no less than twenty (20) Trading Days prior to the Additional Closing Date, (A) setting forth the date of the proposed Additional Closing and (B) certifying that the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date set forth in Sections 6(b7(b)(i),(ii), (iii) and 7(b(xiii) below-(xix) hereof.
(iv) The Company shall have duly executed and delivered to such Buyer: (A) the Additional Note (in such original principal amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers (Additional Closing)) and (B) a Additional Warrant (for such aggregate number of Additional Warrant Shares as is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers (Additional Closing)), until April 30in each case, 2018 (which are being purchased by such Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(v) Such Buyer shall have received the rightopinion of Holland & Knight LLP, at the Company’s counsel, dated as of the Additional Closing Date, in the form previously provided to the Company.
(vi) The Company shall have delivered to such Buyer's sole option, to require Buyer a certificate evidencing the formation and good standing of the Company and its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Additional Closing Date.
(vii) The Company shall have delivered to issue such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and sell good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Additional Closing Date.
(viii) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Additional Closing Date.
(ix) The Company shall have delivered to such Buyer a certificate, in the form previously provided to the Company, executed by the Secretary of the Company and dated as of the Additional 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 and (iii) the Bylaws, each as in effect at the Additional Closing.
(x) Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the rightChief Executive Officer of the Company, dated as of the Additional Closing Date, to purchase the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.
(xi) The Company shall have delivered to such Buyer a letter from the Company up to an aggregate principal amount Transfer Agent certifying the number of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, shares of Common Stock outstanding on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") Date immediately prior to the Company setting forth Additional Closing.
(xii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional 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, except as disclosed in the SEC Documents, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(xiii) From the date hereof to the Additional Closing Date, (i) trading in the aggregate principal amount Common Stock shall not have been suspended by the SEC or the Principal Market (except for any suspension of Additional Notes and related Additional Warrants that such Buyer wishes trading of limited duration agreed to purchase from by the Company, which aggregate principal amount suspension shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on be terminated prior to the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Closing), and, (ii) the date that the Company will be required at any time prior to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date, trading in securities generally as reported by Bloomberg L.P. shall be entitled not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal 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 each Buyer, makes it impracticable or inadvisable to cause purchase the Securities at the Additional Closing
(xiv) The Company to consummate more than one (1) Buyer Additional Closing shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) sale of the conditions set forth in Sections 6(bSecurities, including without limitation, those required by the Principal Market.
(xv) and 7(bNo statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(xvi) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
(xvii) The Company shall have obtained approval of the applicable Buyer Principal Market to list or designate for quotation (as the case may be) the Conversion Shares and the Warrant Shares.
(xviii) A Registration Statement shall be effective and available for the issuance and sale of the Additional Closing set forth in such Buyer Notes, Additional Closing Notice Conversion Shares, Additional Warrants and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers Warrant Shares hereunder and the Company shall within one have delivered to such Buyer the related Prospectus (1and Prospectus Supplement, if applicable) Business Day after any as required thereunder.
(xix) The Company shall have delivered to such delivery publicly disclose Buyer a copy of the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachIrrevocable Transfer Agent Instructions, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the form of Exhibit C attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Transfer Agent.
(xx) The Company shall have at least [ ] shares of Common Stock authorized and available to be issued upon conversion or exercise, as applicable of the Additional Notes and Additional Warrants, respectively.
(xxi) The Company shall have delivered to such Buyer Additional Closing Notice (or such other date and time documents, instruments or certificates relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The option of each Buyer hereunder to purchase the Additional Units at the Additional Closing is subject to such Buyer's delivery to the satisfaction (Company of an Additional Unit Notice and the satisfaction, at or waiver) before the Additional 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 written notice thereof:
(i) The Company shall have complied with the requirements of Section l(c) and all of the Additional Notice Conditions set forth in Sections 6(bSection l(d) shall have been satisfied.
(ii) The Common Stock shall be authorized for quotation on the Nasdaq SmallCap Market or the Nasdaq National Market, as applicable; trading in the Common Stock issuable upon conversion of the Debentures and 7(b) belowupon exercise of the Warrants, until April 30which are to be traded on the Nasdaq SmallCap Market or the Nasdaq National Market, 2018 (as applicable, shall not have been suspended by the "SEC or The Nasdaq Stock Market, Inc.; and all of the Conversion Shares issuable upon conversion of the Debentures, and all of the Warrant Shares issuable upon exercise of the Warrants, to be sold at the Additional Closing Deadline")shall be listed upon the Nasdaq SmallCap Market or the Nasdaq National Market, each as applicable.
(iii) The representations and warranties of the Company in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Additional Closing Date as though made at that time 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 Additional Closing Date. Such Buyer shall have received a certificate, executed by the rightChief Executive Officer of the Company, at such Buyer's sole optiondated as of the Additional Closing Date, to require the Company to issue foregoing effect and sell as to such Buyerother matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c).
(iv) Such Buyer shall have received the opinion of the Company's counsel dated as of the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit D attached hereto.
(v) The Company shall have executed and delivered to such Buyer the Debentures (in such denominations as such Buyer shall have request) being purchased by such Buyer at the right, to purchase from Additional Closing.
(vi) The Board of Directors of the Company up to an aggregate principal amount of Additional Notes shall have adopted, and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount have amended, the Resolutions.
(vii) As of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) belowDate, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Debentures and the exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion of the then outstanding Debentures and upon exercise of the then outstanding Warrants, including for such purposes any Debentures and any Warrants to be issued at such Additional Closing.
(iviii) be required to sell The Company shall have delivered to such Buyer, Buyer a certificate evidencing the incorporation and good standing of the Company and each subsidiary in such corporation's jurisdiction of incorporation issued by the Secretary of State of such jurisdiction of incorporation as of a date within 10 days of the Additional Closing.
(ix) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (a) the Resolutions, (b) the Certificate of Incorporation and (c) Bylaws, each as in effect at the Additional Closing.
(x) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
(xi) No suit, action or other proceeding shall have been commenced (and be required pending) which seeks to purchase from restrain or prohibit or questions the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date validity or legality of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyertransactions contemplated by the Transaction Documents, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company nor shall within one (1) Business Day after any such delivery publicly disclose suit, action or proceeding be threatened.
(xii) All consents, Permits, authorizations, approvals, waivers and amendments required for the delivery by a Buyer consummation of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to transactions contemplated by the Buyers and the Company). The location of such Additional Closing Transaction Documents shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇have been obtained.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tmci Electronics Inc)
Additional Closing Date. Subject The Company is required to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer the “Additional Closing Notice"”) certifying that the Shareholder Approval (as defined below) is effective. The Additional Closing Notice must be delivered to each Buyer by the earlier to occur of (the “Additional Closing Notice Deadline”) (unless the Additional Closing Notice Deadline is waived by the Buyers) (x) five (5) Business Days after the Securities and Exchange Commission (the “SEC”) indicates it has no comments or no further review to the Company setting forth information or proxy statement (the “SEC Statement”) filed in connection with the Shareholder Approval (as defined below) (the “SEC Indication of Completion of Review”), and (y) (i) in the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from event the CompanySEC does not review the SEC Statements, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers April 5, 2006 and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (eachotherwise July 20, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline2006. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable the closing (the “Additional Closing (each, an "Additional Closing Date"Closing”, and together with all the Initial Closing, the “Closing”) of the purchase of the Preferred Shares (the “Additional Closing Dates Date”, and together with the Initial Closing Date, each a "the “Closing Date"”) shall be 10:00 a.m., New York City timeTime, on the date specified in earlier of (the applicable Buyer “Additional Closing Notice Deadline”) (or such other date and time as is mutually agreed to by the Buyers Company and each Buyer) (x) the Company)later of (A) the fifth (5th) Business Day after the date that the Additional Closing Notice has been delivered to each Buyer and (B) in the event that there has been no previous mailing of the applicable SEC Statement or the applicable rules and regulations of the SEC requires an additional mailing of the applicable SEC Statement, a date indicated in the Additional Closing Notice which may be up to twenty-two calendar days after the SEC Indication of Completion of Review and (y) (I) in the event the SEC does not review the SEC Statements, April 15, 2006 and (II) otherwise July 31, 2006. The location of such Additional Closing shall be occur at the offices of S▇▇▇▇▇▇▇ R▇▇▇▇ & Z▇▇▇▇▇ LLP, 9▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Additional Closing Notice shall be irrevocable and must be delivered to each Buyer. Notwithstanding anything in this Agreement to the contrary, the Company shall not be entitled to require the Buyers to purchase the Preferred Shares unless the requirements of Section 7(b) below are satisfied or waived by each Buyer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Devcon International Corp)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer’s sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) and 7(b) belowrelated Additional Warrants (in such amounts as such Buyer shall request), until April 30, 2018 (in each case which are being purchased by such Buyer at the "applicable Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such Buyer shall have received the rightopinion of (x) Mayer, Brown, ▇▇▇▇ & Maw LLP, the Company’s counsel, dated as of the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H-1 attached hereto, and (y) the General Counsel to the Company, dated as of the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H-2 attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date and the Company shall cause its transfer agent to deliver a letter to such Buyer to that effect.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation’s state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the applicable Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State of the State of Maryland as of a date within 10 days of the applicable Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within 10 days of the applicable Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company dated as of the applicable Additional Closing Date, as to (i) the Resolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at such Buyer's sole optionthe applicable Additional Closing, in the form attached hereto as Exhibit I.
(viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the applicable Additional 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 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 applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to require the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit J.
(ix) In the event that the Company is requiring the purchase of Additional Notes pursuant to issue and sell to such Buyera Company Additional Note Notice, and such Buyer shall have received a certificate, executed by the rightChief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to purchase Company Additional Note Notice set forth in Section 1.3(c)(i) have been satisfied.
(x) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the applicable Additional Closing Date.
(xi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market, (II) shall not have been suspended, as of the applicable Additional 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 applicable Additional 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 for the requisite period and (III) during any day during the ninety (90) Trading Days prior to the applicable Additional Closing Date, shall not have fallen below the minimum listing maintenance requirements of the Principal Market.
(xii) The Company up to an aggregate principal amount shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes and related the applicable Additional Warrants as set forth opposite such Buyer's name in columns Warrants.
(3)(bxiii) and 4(b), respectively, During the period beginning on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Initial Closing Date and ending on and including the applicable Additional Closing Notice") to Date, neither the Company setting forth (i) the aggregate principal amount nor any of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Companyits Subsidiaries shall have been in material default under any mortgage, indenture or instrument under which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount there may be issued or by which there may be secured or evidenced any Indebtedness of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants or any of its Subsidiaries.
(xiv) The Company shall have delivered to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such other documents relating to the transactions contemplated by this Agreement as such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable the Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "“Closing Date"”) shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to by the Buyers applicable Buyer and the Company) (the “Additional Closing Date”), subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(d) (or such later date as is mutually agreed to by the Company and the applicable Buyer). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(d), each Buyer may purchase, at such Buyer’s option, Additional Common Shares, Additional Series A Warrants and Additional Series B Warrants by delivering written notice to the Company (the “Additional Closing Notice”) at any time during the period beginning after the date hereof and ending on December 23, 2008. The location of Additional Closing Notice shall be delivered at least three (3) Business Days prior to the Additional Closing Date set forth in such Additional Closing Notice. The Additional Closing Notice shall set forth (i) the number of Additional Common Shares to be purchased by such Buyer at the Additional Closing, which number of shares shall not exceed the number of Additional Common Shares as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers, (ii) Additional Series A Warrants to acquire up to that number of Additional Series A Warrant Shares as is set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers, which number shall equal the maximum number of Additional Series A Warrant Shares multiplied by the quotient obtained by dividing (x) the number of Additional Common Shares actually purchased by such Buyer on the Additional Closing Date, by (y) the maximum number of Additional Common Shares such Buyer is entitled to purchase on the Additional Closing Date as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers and, (iii) Additional Series B Warrants to acquire up to that number of Additional Series B Warrant Shares as is set forth opposite such Buyer’s name in column (8) on the Schedule of Buyers, which number shall equal the maximum number of Additional Series B Warrant Shares multiplied by the quotient obtained by dividing (x) the number of Additional Common Shares actually purchased by such Buyer on the Additional Closing Date, by (y) the maximum number of Additional Common Shares such Buyer is entitled to purchase on the Additional Closing Date as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers, (iv) the aggregate Additional Purchase Price and (v) the proposed Additional Closing Date. For the avoidance of doubt, there shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.not more than one (1)
Appears in 1 contract
Sources: Securities Purchase Agreement (China Technology Development Group Corp)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase Additional Notes and Additional Warrants from the Company at any Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Initial Closing shall have occurred.
(ii) The Company shall have complied with the requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and all of the Additional Sale Notice Election Conditions set forth in Sections 6(bSection 1(d) and 7(b) below, until April 30, 2018 (the "shall have been satisfied as of such Additional Closing Deadline"Date.
(iii) The representations and warranties of the Company (including any exceptions thereto contained in the schedules hereto) shall be true and correct as of the date when made and as of such Additional 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 date), each Buyer provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate, have the right, at such Buyer's sole option, to require the Company to issue and sell to a Material Adverse Effect as determined by such Buyer, and such Buyer shall have the rightin good faith, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b)its sole discretion, respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any 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 such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date". Such Buyer shall have received a certificate, and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to executed by the Buyers and Chief Executive Officer of the Company). The location , dated as of such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including an update as of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(g), 3(h), 3(n), 3(q), 3(s), 3(v), 3(aa) and 3(bb) hereto.
(iv) Such Buyer shall be at have received (A) the offices opinion of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇ & ▇▇▇ ▇▇▇▇, LLP (or such other law firm as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the State of Colorado applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit K attached hereto and (B) the opinions of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇▇▇ & Bolt, LLC, and ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ (or such other law firms as are reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), each dated as of such Additional Closing Date, which opinions will collectively address, among other things, certain laws of the States of Kansas, Wyoming and Texas (and any other states in which the Company has properties or assets as of such Additional Closing Date) applicable to the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit L attached hereto.
(v) The Company shall have executed and delivered to such Buyer the Note Certificates and the Additional Warrants (in such denominations as such Buyer shall request) for the Additional Notes and Additional Warrants being purchased by such Buyer at such Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and not rescinded or otherwise amended or modified resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer with respect to the issuance at such Additional Closing Date of the Additional Notes and Additional Warrants being purchased by the Buyers at such Additional Closing Date.
(vii) As of such Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the exercise of the Warrants, at least the number of shares of Common Stock equal to 100% of the sum of (A) the aggregate number of shares issuable as of such Additional Closing Date upon exercise of all Warrants outstanding immediately prior thereto, and (B) the aggregate number of shares that may be acquired as of such Additional Closing Date upon exercise of all Additional Warrants issued and sold to all of the Buyers thereat.
(viii) The Irrevocable Transfer Agent Instructions shall remain in effect as of such Additional Closing Date and the Company shall have caused the Transfer Agent to deliver a letter to the Buyers to that effect.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity's state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state of incorporation or organization as of a date within ten (10) days of such Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate, dated as of such Additional Closing Date, certifying as to (A) the Resolutions, (B) the Articles of Incorporation, certified as of a date within ten (10) days of such Additional Closing Date, by the Secretary of State of the State of Colorado and (C) the Bylaws, each as in effect at such Additional Closing.
(xi) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of such Additional Closing Date.
(xiii) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable any Additional Closing (each, an "“Additional Closing Date", ” and together collectively with all Additional the Initial Closing Dates Date and the Initial Series B Warrant Closing Date, each a "“Closing Date"”) shall be 10:00 8:00 a.m., New York City time, on the date specified in the applicable Buyer any Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to in writing (including, for these purposes, by electronic mail) by the Buyers Company and the CompanyDesignee) after notification of satisfaction (or waiver) of the conditions to such Additional Closing set forth in Sections 6(c) and 7(c) below. The Company shall deliver a written notice to the Designee setting forth the date it intends to publicly announce an Approved Investment, which announcement date shall at least be four (4) Business Days (as defined below) from the date the Designee receives such notice. If the Designee elects, in its sole and absolute discretion, to cause one or more of its Affiliates, each of which shall then become a “Buyer” hereunder pursuant to Section 9(g), to purchase Notes, such Buyer shall deliver a written notice (the “Additional Closing Notice”) to the Company prior to the public announcement by the Company of the applicable Approved Investment indicating (1) the aggregate principal amount of Notes such Buyer has elected to purchase which shall not exceed the Maximum Amount and (2) the date of such Additional Closing, which shall occur concurrently with the closing of the applicable Approved Investment. The location of such any Additional Closing shall be at the offices of S▇▇▇▇▇▇▇ R▇▇▇▇ & Z▇▇▇▇▇ LLP, 9▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The location of each Additional Closing may be undertaken remotely by electronic transfer of Closing documentation upon mutual agreement among the Company and the Buyers.
Appears in 1 contract
Sources: Securities Purchase Agreement (Acacia Research Corp)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before such Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), are for each Buyer shall have the right, at such Buyer's sole option, to require benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company to issue with prior written notice thereof:
(i) The Company shall have duly executed and sell delivered to such BuyerBuyer each of the Transaction Documents including, and such Buyer shall have the rightwithout limitation, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that Preferred Shares (allocated in such amounts as such Buyer wishes shall request), being purchased by such Buyer at the Additional Closing pursuant to purchase from the Companythis Agreement, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to (allocated in such amounts as such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1request) Trading Day after delivery of being purchased by such Buyer Additional Closing Notice and not later than at the Additional Closing Deadline. No Buyer shall be entitled pursuant to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and this Agreement.
(ii) within one (1) Business Day Such Buyer shall have received the opinion of receipt of a Buyer Additional Closing Notice from a BuyerSmith, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachAnderson, an "Additional Closing Date"Blount, and together with all Additional Closing Dates and the Initial Closing DateDorsett, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇▇▇ R& ▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G.
(viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional 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 Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect in the form attached hereto as Exhibit H.
(ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional 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, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional 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.
(xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder.
(xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
(xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred.
(xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full.
(xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended.
(xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events).
(xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance.
(xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date.
(xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Oxygen Biotherapeutics, Inc.)
Additional Closing Date. Subject to If, after the satisfaction (Initial Closing Date and on or waiver) before the Termination Date, proceeds are received for additional sales of Shares, and if the conditions set forth in Sections 6(b) and 7(b) belowherein have been satisfied or waived, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers you and the Company shall within one determine the date (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date"), time and together place at which each additional closing of the sale of Shares shall occur and provide the Escrow Agent with all at least two business days advance notice of each Additional Closing Date (the Initial Closing Date and each Additional Closing Dates and the Initial Closing Date, are herein referred to each as a "Closing Date"). On each Additional Closing Date the Escrow Agent will notify you and the Company of: (i) shall the amount received for subscriptions for Shares that was on deposit in the Escrow Account for at least three business days prior to the Additional Closing Date (the "Additional Subscription Proceeds"), (ii) any volume discounts applicable to those Additional Subscription Proceeds, (iii) the amount of accrued interest on the Additional Subscription Proceeds, and (iv) any then unpaid escrow fees and expenses. On each Additional Closing Date, the Escrow Agent shall: (x) deliver to you by wire transfer in immediately available funds, as payment of the amounts owed to you pursuant to Sections 27.(a) and (b), an amount equal to ten and one half percent (10.5%) of the Additional Subscription Proceeds grossed up for any applicable volume discounts, minus any volume discounts applicable to those Additional Subscription Proceeds; and (y) deliver to the Company by wire transfer in immediately available funds an amount equal to the balance of the Additional Subscription Proceeds minus any then unpaid escrow fees and expenses. The Escrow Agent will be 10:00 a.m., New York City timedirected to distribute the aggregate accrued interest on the funds held in the Escrow Account to the purchasers of the Shares, on a pro rata basis, calculated based on the date specified number of days each purchaser's cleared funds are held in escrow, without reduction for any fees and reimbursements to be paid to the Escrow Agent and subject to the applicable Buyer Additional Closing Notice withholding provisions of the Internal Revenue Code. You will, upon your receipt from the Escrow Agent of funds pursuant to this Section 2.6, deliver (or such other date and time as is mutually agreed cause to be delivered) to the Selected Dealers, by wire transfer in immediately available funds, an amount equal to the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇selling commissions payable to them.
Appears in 1 contract
Sources: Selling Group Manager Agreement (United Mortgage Trust)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer's sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and 7(bdelivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) below, until April 30, 2018 (which are being purchased by such Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such Buyer shall have received the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount opinion of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇the Company's outside counsel, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇dated as of the Additional Closing Date in form acceptable to the Buyer and that the Company is in good standing with its attorneys.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and the Company shall cause its transfer agent to deliver a letter to such Buyer to that effect.
(iv) The Company shall have delivered to such Buyer a certificate, executed by the Chief Executive Officer of the Company dated as of the Additional Closing Date, as to (i) the Resolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit E.
(v) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional 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 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 Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer; Nothing herein shall be deemed a representation, warranty, covenant or agreement that the representations and warranties contained herein that are described in the Representation Certificate (as defined below) shall be true and correct as of the Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(vii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market, (II) shall not have been suspended, as of the Additional 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 Additional Closing Date, in writing by the SEC or the Principal Market and (III) during any day during the ninety (90) Trading Days prior to the Additional Closing Date, shall not have fallen below the minimum listing maintenance requirements of the Principal Market.
(viii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes.
(ix) No Event of Default (as defined in the Notes) shall have occurred and be continuing.
(x) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
(xi) The Registration Statement has been filed with the SEC.
Appears in 1 contract
Sources: Securities Purchase Agreement (MFC Development Corp)
Additional Closing Date. Subject (i) The date and time of the Additional Closings (the “Additional Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 10:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) belowand the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the Company and the applicable Buyer).
(ii) Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), until April 30, 2018 following (x) the delivery of a certificate of the Company in the form attached hereto as Exhibit L (the "Additional Closing Deadline"“MECAR Certificate”), each Buyer certifying that the MECAR Contract (I) has been duly executed and delivered by the parties thereto (the date of the execution thereof, the “MECAR Execution Date”) and (II) is a validly binding and enforceable agreement of the parties thereto and (y) the public announcement of the execution of the MECAR Contract (as defined in the MECAR Certificate) and the filing of the MECAR Certificate as an exhibit to a filing by the Company with the SEC, at any time prior to the Escrow Termination Date, the Company shall have the rightright to require each Buyer to purchase, at such Buyer's sole optionone Closing, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as is set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's ’s name in column (3)(b6) on the Schedule of Buyers and which aggregate number of (as provided by the Company, a “Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date Closing Notice”); provided, that if the Company will be required elects to sell such Additional Notes and related Additional Warrants to such Buyer (each, deliver a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than to any Buyer, it must deliver an identical Additional Closing Notice to all Buyers. Any Additional Closing Notice delivered by the Company shall be irrevocable. Notwithstanding anything herein to the contrary, at any time on or after the MECAR Execution Date, upon the Company’s receipt of one or more written notices by the holders of a majority of the Notes then outstanding, in the aggregate, electing to cause the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Noticeoccur, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose thereafter deliver Additional Closing Notices to the delivery by a Buyer of a Buyer Buyers. Each Additional Closing Notice on shall contain a Current Report on Form 8-K. The date and time of each applicable proposed Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") Date that shall be 10:00 a.m., New York City time, on at least five (5) Business Days but not more than ten (10) Business Days following the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of delivery of such Additional Closing Notice to the Buyers. Each Additional Closing Notice shall set forth (i) the principal amount of Additional Notes to be purchased by each Buyer at the offices Additional Closing and (ii) the proposed Additional Closing Date. As used herein, “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇New York are authorized or required by law to remain closed.
Appears in 1 contract
Sources: Securities Purchase Agreement (Allied Defense Group Inc)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the Additional Warrants at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before each Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at are for such Buyer's sole option, to require benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a with prior written notice (a "Buyer Additional Closing Notice") to the Company setting forth thereof:
(i) The Company shall have complied with the aggregate principal amount requirements of Section 1(c) and all of the Additional Notes Notice Conditions and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes Effectiveness Conditions set forth opposite such Buyer's name in column (3)(bSection 1(d) on shall have been satisfied as of the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Closing Date.
(ii) the date that the Company will The Articles of Amendment shall be required to sell such Additional Notes in full force and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date effect and shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and have been amended since the Initial Closing Date, each and a "copy thereof certified by the Secretary of State of the State of Indiana shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on the Nasdaq National Market, or listed on the NYSE or AMEX, and shall not have been suspended from trading on or delisted from such exchanges nor shall delisting or suspension by such exchanges have been threatened either (A) in writing by such exchanges or (B) by falling below the minimum listing maintenance requirements of such exchanges and the Company has complied with the listing requirements of the Nasdaq National Market or the NYSE, as applicable, for the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Additional Preferred Shares and the related Warrants as the case may be.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional 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 or the Articles of Amendment to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date") . Such Buyer shall be 10:00 a.m.have received a certificate, New York City timeexecuted by the Chief Executive Officer of the Company, on dated as of the date specified in the applicable Buyer Additional Closing Notice (or Date, to the foregoing effect and as to such other date and time matters as is mutually agreed to by such Buyer may reasonably request, including, without limitation, an update as of the Buyers and the Company). The location of such Additional Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall be at have received the offices opinions of S▇▇▇▇▇▇ R▇Barn▇▇ & Z▇▇▇▇ LLP, 9▇▇ Thor▇▇▇▇▇ ▇▇▇ Snel▇ & ▇▇▇▇, ▇ilm▇▇ ▇▇▇▇▇ dated as of the Additional Closing Date in substantially the forms of Exhibit D, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates for the Additional Preferred Shares and the Additional Warrants being purchased by the Buyer at the Additional Closing.
(vii) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(viii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 100% of the sum of (A) the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares and (B) the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants (without regard to any limitations on conversion), including for such purposes the Additional Preferred Shares and related Additional Warrants to be issued at such Additional Closing.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent and shall be in effect as of the Additional Closing.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Additional Closing Date.
(xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Indiana within ten days of the Additional Closing Date.
(xii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) the Articles of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(xiv) The Additional Registration Statement (as defined in the Registration Rights Agreement) shall have been declared effective by the SEC on or before the date which is 80 days after the Additional Share Notice Date.
(xv) The Company shall have delivered to the Buyers such other documents relating to the transactions contemplated by this Agreement as the Buyers or their counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer's sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and 7(bdelivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) below, until April 30, 2018 (which are being purchased by such Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such Buyer shall have received the rightopinions of Mintz, at such BuyerLevin, Cohn, Ferris, Glovsky and Popeo, P.C., the Company's sole optionoutside counsel, to require dated as of the Additional Closing Date, in substantially the form of EXHIBIT D attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and the Company shall cause its transfer agent to issue and sell deliver a letter to such Buyer, and Buyer to that effect.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries (other than Inksure Ltd.) in such entity's jurisdiction of formation issued by the Secretary of State of the State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the right, to purchase from Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company up to an aggregate principal amount conducts business, as of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on a date within 10 days of the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice"Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within 10 days of the Additional Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company setting forth dated as of the Additional Closing Date, as to (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the CompanyResolutions, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as EXHIBIT E.
(viii) The representations and warranties of the Company will shall be required to sell such Additional Notes true and related Additional Warrants to such Buyer correct in all material respects (each, a "Buyer Additional Closing")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 shall not be less than one (1) Trading Day after delivery when made and as of such Buyer Additional Closing Notice and not later than the Additional Closing DeadlineDate 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 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 Additional Closing Date. No Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as EXHIBIT F; provided, that Buyer shall be entitled to cause the Company to not consummate more than one (1) Buyer an Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to if the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell Representation Certificate is not acceptable to such Buyer, in its sole discretion. Nothing herein shall be deemed a representation, warranty, covenant or agreement that the representations and warranties contained herein that are described in the Representation Certificate (as defined below) shall be true and correct as of the Additional Closing Date.
(ix) The Company shall have delivered to such Buyer shall be required to purchase a letter from the Company, 's transfer agent certifying the aggregate principal amount number of Additional Notes and related Additional Warrants set forth in shares of Common Stock outstanding as of a date within five days of the Buyer Additional Closing Notice Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the date Principal Market, (II) shall not have been suspended, as of the Additional 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 Additional Closing Date, in writing by the SEC or the Principal Market and (III) during any day during the ninety (90) Trading Days prior to the Additional Closing Date, shall not have fallen below the minimum listing maintenance requirements of the Principal Market.
(xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Buyer Additional Closing set forth Notes.
(xii) No Event of Default (as defined in the Notes) shall have occurred and be continuing.
(xiii) The Company shall have delivered to such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time documents relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Inksure Technologies Inc.)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase Additional Notes and the Additional Shares from the Company at any Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Initial Closing shall have occurred.
(ii) The Company shall have complied with the requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and all of the Additional Sale Notice Election Conditions set forth in Section 1(d) shall have been satisfied as of such Additional Closing Date.
(iii) The representations and warranties of the Company herein (including any exceptions thereto contained in the schedules hereto) shall be true and correct as of the date when made and as of such Additional 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 date), provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company and its Subsidiaries 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 such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Additional Closing Date, to the foregoing effect (including with respect to the satisfaction (or waiver) of the conditions set forth in Sections 6(bSection 7(b)(ii)) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at as to such Buyer's sole option, to require the Company to issue and sell to other matters as may be reasonably requested by such Buyer, and such Buyer shall have the right, to purchase from the Company up to including an aggregate principal amount of Additional Notes and related Additional Warrants update as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(g), 3(h), 3(n), 3(q), 3(s), 3(w), 3(bb) and 3(cc) hereto.
(iv) Such Buyer shall be at have received (A) the offices opinion of SBurnet, ▇▇▇▇▇▇▇▇▇ R& ▇▇▇ & Z▇▇▇▇ LLPLLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), 9dated as of such Additional Closing Date, which opinion will address, among other things, laws of the Province of Alberta and the federal laws of Canada, including securities laws and laws relating to withholding taxes, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit K attached hereto, (B) the opinion of Goodmans LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on the Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the Province of Ontario, including securities laws, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit L attached hereto; (C) the opinion of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ & ▇▇▇▇ LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the State of Michigan applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit M hereto, (D) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the States of Delaware, New York and Texas applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit N attached hereto, and (E) the opinion of such law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of Additional Notes on such Additional Closing Date, dated as of such Additional Closing Date, which opinion will address among other things, to the extent applicable, laws of the States of Montana and Wyoming (as well as any other jurisdictions in which the Company has properties or assets as of such Additional Closing Date) applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer.
(v) The Company shall have executed and delivered to such Buyer the Note Certificates and Share Certificates (in such denominations as such Buyer shall request) for the Additional Notes and the Additional Shares to be issued to such Buyer at such Additional Closing and Subscription Receipts for the Additional Shares to be issued to such Buyer on each of the dates that are six (6) months, 12 months and 18 months after such Additional Closing Date.
(vi) The Boards of Directors of the Company and its Subsidiaries shall have adopted, and not rescinded or otherwise amended or modified resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer with respect to the issuance at such Additional Closing Date of the Additional Notes and the related Shares being purchased by the Buyers at such Additional Closing Date (the “Additional Closing Resolutions”).
(vii) The Irrevocable Transfer Agent Instructions shall remain in effect as of such Additional Closing Date, and the Company shall have caused the Transfer Agent to deliver a letter to the Buyers to that effect.
(viii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity’s state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state of incorporation or organization as of a date within ten (10) days of such Additional Closing Date.
(ix) The Company shall have delivered to such Buyer a secretary’s certificate, dated as of such Additional Closing Date, certifying as to (A) the Additional Closing Resolutions, (B) the Articles of the Corporation, certified as of a date within ten (10) days of such Additional Closing Date, by the Alberta Registrar of Corporations, (C) the Bylaws, each as in effect at such Additional Closing, (D) the organizational documents of each Subsidiary, certified as of a date within ten (10) days of such Additional Closing by the applicable governmental authority of the applicable jurisdiction, and (E) the by-laws, limited partnership agreement or limited liability company agreement of each Subsidiary, as the case may be.
(x) The Company shall have made all filings under all applicable U.S. and Canadian federal and state, provincial and territorial securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xi) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Shares outstanding as of a date within five (5) days of such Additional Closing Date.
(xii) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Gastar Exploration LTD)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer's sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion:
(i) Certificate of Designations shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of The Commonwealth of Massachusetts shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been suspended by Principal Market or the SEC on or at any time prior to the Additional Closing Date and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the Common Stock on or prior to the Additional Closing Date.
(iii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and 7(b) belowthe Company shall have performed, until April 30satisfied and complied with the covenants, 2018 (agreements and conditions required by the "Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Deadline"), each Date. Such Buyer shall have received a certificate, executed by the rightChief Executive Officer of the Company, at such Buyer's sole optiondated as of the Additional Closing Date, to require the Company to issue foregoing effect and sell as to such Buyerother matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of the Company's counsel dated as of the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT C attached hereto.
(v) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall have request) for the right, to purchase from Preferred Shares being purchased by such Buyer at the Additional Closing.
(vi) The Board of Directors of the Company up shall have adopted the Resolutions.
(vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to an aggregate principal at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares outstanding on the Additional Closing Date (after giving effect to the Preferred Shares to be issued on such Additional Closing Date and assuming all such outstanding Preferred Shares were fully convertible or exercisable on such date regardless on any limitation on the timing or amount of such conversions or exercises) which such number of shares of Common Stock shall be fully available to be issued as Conversion Shares under Rule 4460 of the Nasdaq National Market.
(viii) 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.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Additional Notes and related Additional Warrants Closing.
(x) The Company shall have delivered to such Buyer a certified copy of its Articles of Organization as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on certified by the Schedule Secretary of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer State of The Commonwealth of Massachusetts within ten days of the Additional Closing Notice"Date.
(xi) The Company shall have delivered to such Buyer a clerk's certificate, dated as the Company setting forth Additional Closing Date, as to (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the CompanyResolutions, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that Articles of Organization and (iii) the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (eachBylaws, a "Buyer each as in effect at the Additional Closing"), which date shall not be less than one .
(1xii) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject The conditions to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (iiSection 1(c) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile shall have been satisfied on or electronic mail and overnight courier to all other Buyers and before the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date".
(xiii) The Company shall be 10:00 a.m., New York City time, on the date specified in the applicable have delivered to such Buyer Additional Closing Notice (or such other date and time documents relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Alpha Beta Technology Inc)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Common Shares and the related Additional Warrants at each of the applicable Additional Closings is subject to the satisfaction (satisfaction, at or waiver) before each of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline")Dates, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have undertaken to deliver, within three (3) Business Days following the applicable Additional Closing Date (A) certificates for the Additional Common Shares (in such denominations as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement and (B) the related Additional Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the rightopinion of Cooley Godward LLP, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company's counsel, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) dated as of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9applicab▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇itional Closing Date, ▇▇▇ ▇▇▇▇in form, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit D attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date.
(iv) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional 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 Additional 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.
(v) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the Resolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the applicable Additional Closing, in the form attached hereto as Exhibit E.
(vi) The representations and warranties of the Company shall be true and correct in all material respects (except for representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date when made and as of the applicable Additional 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 in all material respects (except for covenants, agreements and conditions that are qualified by materiality, which shall be complied with in all 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 applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit F.
(vii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each New Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before each Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each New Buyer's sole benefit and may be waived by such New Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such New Buyer the Additional Notes (in such principal amounts as such New Buyer shall request) and 7(bthe Additional Warrants (in such amounts as such New Buyer shall request) below, until April 30, 2018 (which are being purchased by such New Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such New Buyer shall have received the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount opinion of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of SR▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ A▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇LPA, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇the Company's outside counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit H attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and the Company shall cause its transfer agent to deliver a letter to such New Buyer to that effect.
(iv) The Company shall have delivered to such New Buyer a certified copy of the Certificate of Incorporation as certified by the Nevada Secretary of State within ten (10) days of the Additional Closing Date.
(v) The Company shall have delivered to such New Buyer a certificate, in the form acceptable to such New Buyer, executed by the Secretary of the Company and dated as of the Additional 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 New Buyer, (II) the Certificate of Incorporation of the Company and (III) the Bylaws of the Company, each as in effect at the Additional Closing.
(vi) Each and every representation and warranty of the Company shall be true and correct in all material respects (other than representations and warranties that are already 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 Additional Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such New Buyer shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such New Buyer in the form acceptable to such New Buyer.
(vii) The Company shall have delivered to such New Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding on the Additional Closing Date immediately prior to the Additional Closing.
(viii) The Common Stock (I) shall be designated for quotation or listed (as applicable) on the Principal Market and (II) shall not have been suspended, as of the Additional 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 Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(ix) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market.
(x) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority or other Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(xi) Since the date of execution of this Agreement, no event or series of events shall have occurred that has or reasonably could be expected to have a Material Adverse Effect.
(xii) The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the applicable Additional Conversion Shares and Additional Warrant Shares.
(xiii) No Event of Default (as defined in the Notes) shall have occurred and be continuing.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder ----------------------- to purchase the Additional Preferred Shares and the related Additional Warrants at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), are for each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue benefit and sell to such Buyer, and may be waived by such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name at any time in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth its sole discretion:
(i) the aggregate principal amount The Articles of Additional Notes Amendment shall be in full force and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount effect and shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and have been amended since the Initial Closing Date, each and a "copy thereof certified by the Secretary of State of the State of Florida shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation, listing or trading on the Principal Market, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on the Principal Market shall not have been suspended by the SEC or the Principal Market at any time after the Initial Closing Date and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Additional Preferred Shares or exercise of the Additional Warrants, as the case may be, to be sold at the Additional Closing shall be listed or quoted upon the Principal Market.
(iii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional 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 or the Articles of Amendment to be performed, satisfied or complied with by the Company at or prior to the respective Additional Closing Date". Such Buyer shall have received a certificate, executed by the Chairman ( so long as the Chairman is an executive officer) shall be 10:00 a.m.or the Chief Executive Officer of the Company, New York City time, on dated as of the date specified in the applicable Buyer Additional Closing Notice (or Date, to the foregoing effect and as to such other date and time matters as is mutually agreed to may be reasonably requested by such Buyer including, without limitation, an update as of the Buyers and Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of the Company). The location 's outside counsel dated as of such Additional Closing Date, in scope and substance substantially in the form of Exhibit C attached hereto. ---------
(v) The Company shall have executed and delivered to such Buyer the Additional Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares being purchased by such Buyer at the Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares and the exercise of the Additional Warrants, a number of shares of Common Stock equal to at least (A) 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares and (B) 100% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants, including for such purposes any Preferred Shares and Warrants to be issued at the Additional Closing.
(viii) 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 and shall be in effect as of the Additional Closing Date.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each subsidiary in such corporation's state of incorporation issued by the Secretary of State of Florida as of a date within ten days of the Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (a) the Resolutions, (b) the Articles of Incorporation and (c) Bylaws, each as in effect at the offices Additional Closing.
(xi) During the period beginning on the Additional Share Notice Date and ending on and including the respective Additional Closing Date, the Company shall have delivered Conversion Shares upon conversion of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLPthe Preferred Shares on a timely basis as set forth in Section 2(f)(ii) of the Articles of Amendment.
(xii) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten days of the Additional Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(xiv) The Company shall have complied with the conditions of Section 1(d).
(xv) The Registration Statement covering the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be issued at the Additional Closing shall have been declared effective by the SEC within 90 days of the Company's receipt of the Additional Share Notice, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇shall be available for resale of the Conversion Shares and Warrant Shares on the Additional Closing Date and shall cover at least (A) 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares and (B) 100% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇including for such purposes any Preferred Shares and Warrants to be issued at the Additional Closing.
(xvi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), are for each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue benefit and sell to such Buyer, and may be waived by such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name at any time in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth its sole discretion:
(i) the aggregate principal amount The Articles of Additional Notes Amendment shall be in full force and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount effect and shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and have been amended since the Initial Closing Date, each and a "Closing Date"copy thereof certified by the Secretary of State of the State of Florida shall have been delivered to such Buyer.
(ii) The Common Stock shall be 10:00 a.m.authorized for quotation on The Nasdaq SmallCap Market, New York City timethe Nasdaq National Market, on the date specified NYSE or AMEX, trading in the applicable Buyer Common Stock issuable upon conversion of the Additional Closing Notice (Preferred Shares and the exercise of the related Warrants to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or such other date and time as is mutually agreed to AMEX shall not have been suspended by the Buyers SEC, The Nasdaq Stock Market, Inc., NYSE or AMEX and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Additional Preferred Shares and the Company). The location of related Warrants to be sold at such Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or AMEX.
(iii) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the respective Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the offices 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 respective Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLPthe Company, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇dated as of such Additional Closing Date, ▇▇▇ ▇▇▇▇to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇without limitation, an update as of such Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of the Company's counsel dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.
(v) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares being purchased by such Buyer at such Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions in a form reasonably acceptable to such Buyer.
(vii) As of such Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares and the exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion and exercise in full, as the case may be, of the then outstanding Preferred Shares and Warrants, including for such purposes any Preferred Shares and Warrants to be issued at such Additional Closing.
(viii) 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.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of such Additional Closing.
(x) The Company shall have delivered to such Buyer certified copies of its Articles of Incorporation and Bylaws, each as in effect at such Additional Closing.
(xi) During the period beginning on the Additional Share Notice Date and ending on and including the Additional Closing Date, the Company shall have delivered Conversion Shares upon conversion of the Preferred Shares and Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Articles of Amendment and Sections 2(a) and 2(b) of the Warrants, respectively.
(xii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Smart Choice Automotive Group Inc)
Additional Closing Date. Subject The date and time of the Additional Closings (each, an "ADDITIONAL CLOSING DATE," and together with the Initial Closing Date, each or "CLOSING DATE" and collectively, the "CLOSING DATES") shall be 10:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) below, until April 30, 2018 and the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the "Additional Closing Deadline"Company and the applicable Buyer). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), each Buyer shall have the rightmay purchase, at such Buyer's sole option, Additional Notes by delivering written notice to require the Company (an "ADDITIONAL CLOSING NOTICE") at any time prior to issue and sell March 30, 2007. An Additional Closing Notice shall be delivered at least five Business Days prior to the applicable Additional Closing Date set forth in such Buyer, and such Buyer Additional Closing Notice. An Additional Closing Notice shall have set forth (i) the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related to be purchased by such Buyer at the applicable Additional Warrants as set forth opposite Closing, which principal amount, when added to the principal amount of any Additional Notes previously purchased by such Buyer's name in columns (3)(b) and 4(b), respectively, on shall not exceed the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes as is set forth opposite such Buyer's name in column (3)(b4) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Buyers, (ii) the date that aggregate Additional Purchase Price for the Company will be required to sell such Additional Notes to be purchased and related (iii) the proposed Additional Warrants Closing Date. The Company shall promptly deliver a copy of each Additional Closing Notice to each Buyer that did not issue such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than allow such Buyer to participate in such Additional Closing, provided such Buyer gives written notice of its election to participate two (2) Business Days prior to the Additional Closing DeadlineDate. No Buyer shall be entitled to cause the Company to consummate more As used herein, "BUSINESS DAY" means any day other than one (1) Buyer Additional Closing for such Buyer. Upon receipt Saturday, Sunday or other day on which commercial banks in The City of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (are authorized or such other date and time as is mutually agreed required by law to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇remain closed.
Appears in 1 contract
Sources: Securities Purchase Agreement (Inksure Technologies Inc.)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Notes and the related Warrants at the each Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before such Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer’s sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company and, to the extent it is a party thereto, each of its Existing Subsidiaries, shall have duly executed and 7(bdelivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) below, until April 30, 2018 (the "being purchased by such Buyer at such Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such Buyer shall have received the rightopinion of Osler, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ Harcourt LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇the Company’s outside counsel, ▇▇▇ ▇▇▇▇dated as of the each Additional Closing Date, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇in substantially the form of Exhibit E attached hereto.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of such Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by The Director, Canada Business Corporations Act, Industry Canada, within ten (10) days of such Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of such Additional Closing Date, as to (A) the Certificate of Incorporation and (B) the Bylaws, each as in effect at such Additional Closing, in the form attached hereto as Exhibit F.
(vii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of such Additional 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 in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit G.
(viii) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of such Additional Closing Date.
(ix) The Common Stock (i) shall be listed on the Principal Market and (ii) shall not have been suspended, as of such Additional Closing Date, by the SEC, the CSA or the Principal Market from trading on the Principal Market nor shall suspension by the SEC, he CSA or the Principal Market have been threatened, as of such Additional Closing Date, either (A) in writing by the SEC, the CSA or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes.
(xi) No Event of Default (as defined in the Notes) shall have occurred and be continuing.
(xii) The approval of the Principal Market for the issuance of the Securities issuable on such Additional Closing Date and the conditional listing of the Conversion Shares, Warrant Shares and Interest Shares on the Principal Market shall have remained continuously in effect from the time of the Initial Closing Date.
(xiii) The Company shall have duly executed and delivered to such Buyer an additional Hypothec Agreement with respect to the Additional Notes, substantially in the form attached hereto as Exhibit H, but which shall be limited in amount to CDN$6 million.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Art Advanced Research Technologies Inc)
Additional Closing Date. Subject (i) The date and time of the Additional Closings (the “Additional Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 10:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) belowand the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the Company and the applicable Buyer).
(ii) Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), until April 30, 2018 following (x) the delivery of a certificate of the Company in the form attached hereto as Exhibit L (the "Additional Closing Deadline"“MECAR Certificate”), each Buyer certifying that the MECAR Contract (I) has been duly executed and delivered by the parties thereto (the date of the execution thereof, the "MECAR Execution Date”) and (II) is a validly binding and enforceable agreement of the parties thereto and (y) the public announcement of the execution of the MECAR Contract (as defined in the MECAR Certificate) and the filing of the MECAR Certificate as an exhibit to a filing by the Company with the SEC, at any time prior to the Escrow Termination Date, the Company shall have the rightright to require each Buyer to purchase, at such Buyer's sole optionone Closing, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as is set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's ’s name in column (3)(b6) on the Schedule of Buyers and which aggregate number of (as provided by the Company, a “Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date Closing Notice”); provided, that if the Company will be required elects to sell such Additional Notes and related Additional Warrants to such Buyer (each, deliver a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than to any Buyer, it must deliver an identical Additional Closing Notice to all Buyers. Any Additional Closing Notice delivered by the Company shall be irrevocable. Notwithstanding anything herein to the contrary, at any time on or after the MECAR Execution Date, upon the Company’s receipt of one or more written notices by the holders of a majority of the Notes then outstanding, in the aggregate, electing to cause the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Noticeoccur, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose thereafter deliver Additional Closing Notices to the delivery by a Buyer of a Buyer Buyers. Each Additional Closing Notice on shall contain a Current Report on Form 8-K. The date and time of each applicable proposed Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") Date that shall be 10:00 a.m., New York City time, on at least five (5) Business Days but not more than ten (10) Business Days following the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of delivery of such Additional Closing Notice to the Buyers. Each Additional Closing Notice shall set forth (i) the principal amount of Additional Notes to be purchased by each Buyer at the offices Additional Closing and (ii) the proposed Additional Closing Date. As used herein, “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇New York are authorized or required by law to remain closed.
Appears in 1 contract
Sources: Securities Purchase Agreement (Allied Defense Group Inc)
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing ADDITIONAL CLOSING Date") shall be 10:00 a.m., New York City timeTime, on the date specified in the applicable Buyer Additional Debenture Notice (as defined below), subject to satisfaction (or waiver) of the conditions to each Additional Closing Notice set forth in Sections 2.2(b) and 2.3(b) and the conditions contained in this Section 2.1(c) (or such other later date and time as is mutually agreed to by the Buyers Company and the Companyapplicable Purchaser). Subject to the requirements of Sections 2.2(b) and 2.3(b) and the conditions contained in this Section 2.1(c) each Purchaser may purchase, at such Purchaser's option, Additional Debentures by delivering written notice to the Company (an "ADDITIONAL DEBENTURE NOTICE") at any time during the period beginning after the date hereof and ending on and including the date which is the eighteen month anniversary of the effectiveness of the Registration Statement relating to the Initial Debentures and Initial Warrants. The location of such Additional Debenture Notice shall be delivered at least ten Business Days prior to the Additional Closing Date set forth in the Additional Debenture Notice. The Additional Debenture Notice shall set forth (i) the principal amount of Additional Debentures and related Additional Warrants to be purchased by such Purchaser at the offices applicable Additional Closing Date, which principal amount, when added to the principal amount of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLPany Additional Debentures previously purchased by such Purchaser, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇shall not exceed such Purchaser's Additional Investment Amount, ▇▇▇ ▇▇▇▇(ii) the aggregate Purchase Price for the Additional Debentures and related Additional Warrants to be purchased and (iii) the Additional Closing Date. As used herein, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇"BUSINESS DAY" means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer's sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion:
(i) The Articles of Amendment shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Florida shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on the Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or AMEX, trading in the Common Stock shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc., NYSE or AMEX on the Additional Closing Date.
(iii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and 7(bthe 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 Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) belowabove.
(iv) Such Buyer shall have received the opinion of the Company's counsel dated as of the Additional Closing Date, until April 30in form, 2018 scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.
(v) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Preferred Shares being purchased by such Buyer at the Additional Closing.
(vi) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "Resolutions").
(vii) As of the Additional Closing Deadline"Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares outstanding on the Additional Closing Date (after giving effect to the Preferred Shares to be issued on such Additional Closing Date and assuming all such outstanding Preferred Shares were fully convertible or exercisable on such date regardless on any limitation on the timing or amount of such conversions or exercises).
(viii) 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.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Additional Closing.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Additional Closing.
(xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten days of the Additional Closing Date.
(xii) The Company shall have delivered to such Buyer a secretary's certificate, dated as the Initial Closing Date, as to (i) the resolutions described in Section 7(a)(vii), (ii) the Articles of Incorporation and (iii) the Bylaws, each Buyer as in effect at the Additional Closing.
(xiii) The Company shall have the rightdelivered to such Buyer copies of proxy agreements, at such Buyer's sole option, to require the Company to issue and sell in a form reasonably acceptable to such Buyer, executed by each executive officer and such Buyer shall have the right, to purchase from director of the Company up pursuant to an aggregate principal amount which such persons agree to vote in favor of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name the matters described in columns Section 4(j).
(3)(bxiv) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") The conditions to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (iiSection 1(c) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile shall have been satisfied on or electronic mail and overnight courier to all other Buyers and before the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date".
(xv) The Company shall be 10:00 a.m., New York City time, on the date specified in the applicable have delivered to such Buyer Additional Closing Notice (or such other date and time documents relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇ R▇▇▇ & Z▇▇▇▇ LLP, 9▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at each of the applicable Additional Closings is subject to the satisfaction (satisfaction, at or waiver) before each of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline")Dates, of each Buyer shall have of the rightfollowing conditions, at such provided that these conditions are for each Buyer's sole option, to require benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company to issue with prior written notice thereof:
(i) The Company shall have executed and sell delivered to such Buyer, and Buyer the Additional Notes (in such principal amounts as such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes request) and related Additional Warrants (in such amounts as set forth opposite such Buyer's name in columns (3)(bBuyer shall request) and 4(b), respectively, on being purchased by such Buyer at the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer applicable Additional Closing Notice") pursuant to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and this Agreement.
(ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Such Buyer shall be entitled to cause have received the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt opinions of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) belowBingham McCutchen LLP, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of S▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ R▇▇▇ States outside counsel, and Naschitz, Brandes & Z▇▇▇▇ LLPCo., 9▇▇ ▇▇▇▇the Company'▇ ▇▇▇▇▇▇li outside counsel, ▇▇▇ ▇▇▇▇dated as of the applicable Additional Closing Date, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇in a form reasonably acceptable to such Buyer.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date and the Company shall cause its transfer agent to deliver a letter to such Buyer to that effect.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing and/or valid existence of the Company and each of its Subsidiaries in such entity's jurisdiction of formation of incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the applicable Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign entity and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business, as of a date within 10 days of the applicable Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company dated as of the applicable Additional Closing Date, as to (i) the Transaction Resolutions, (ii) the Articles of Association and (iii) the Memorandum, each as in effect at the applicable Additional Closing, in the form attached hereto as Exhibit I.
(vii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the applicable Additional 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 in all 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 applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit J.
(viii) The Ordinary Shares (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the applicable Additional 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 applicable Additional 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.
(ix) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Additional Notes and the Additional Warrants being purchased at the applicable Additional Closing. Without limiting the generality of the foregoing, the Company shall have obtained approval by the OCS and the Investment Center for the transactions contemplated hereunder, together with such other agreements as the Buyers shall reasonably require to ensure that the Buyers enjoy full rights with respect to the Collateral (subject to the rights of the OCS under the R&D Law), evidence of which shall have been provided to the Buyers.
(x) Within six (6) Business Days prior to the applicable Additional Closing Date, the Company shall have delivered or caused to be delivered to each Buyer certified copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Buyers shall not show any such Liens (as defined in the Pledge and Security Agreement).
(xi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Commtouch Software LTD)
Additional Closing Date. Subject to the satisfaction (or waiver) The date and time of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 Additional Closing (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", ," and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in Trading Day immediately following the applicable Buyer Additional six (6) month anniversary of the Initial Closing Notice Date (or if the six (6) month anniversary of the Initial Closing Date is not a Trading Day, the second (2nd) Trading Day following such six (6) month anniversary) (or, in any case, such other date and time as is mutually agreed to by the Buyers each Buyer and the Company), subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(d). On the day that all Initial Preferred Shares have been redeemed or converted in full, the Company shall deliver a written notice to each of the Buyers indicating such fact. Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(d), each Buyer shall purchase, and the Company shall sell to each such Buyer the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in column 3(b) and column 4(b) of the Schedule of Buyers, respectively. If the Company has not satisfied one or more conditions to the Additional Closing, subject to the conditions set forth in Section 6(b), each Buyer may elect, by written notice to the Company, to waive any such condition or conditions, and may elect to purchase all or any portion of the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in the immediately preceding sentence. The location of such the Additional Closing shall be at the offices of S▇▇▇▇▇▇▇ R▇▇▇▇ & Z▇▇▇▇▇ LLP, 9▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Notwithstanding anything herein to the contrary, if the Additional Closing does not occur by the third (3rd) Trading Day immediately following the six (6) month anniversary of the Initial Closing Date (or such other date as is mutually agreed to by each Buyer and the Company) (the "Additional Closing Termination Date"), then (i) the Company’s obligation to sell any Additional Preferred Shares and Additional Warrants, and the Buyer’s obligation to purchase such Additional Preferred Shares and Additional Warrants shall terminate, and (ii)any "lock-up" or similar provisions contained in (a) Section 4(o)(ii) below, (b) Section 2(a)(xxiv)(J), the first sentence of Section 11, the third, fourth and sixth sentences of Section 12, Section 14(c), and Section 14(e) of the Certificate of Designations, and (c) in each of the Lock-Up Agreements (as defined below) (collectively, the "Lock-Up Provisions") shall be deemed to have expired on the Additional Closing Termination Date. In addition, if pursuant to this paragraph the Buyers, in the aggregate, elect to purchase less than 4,000 Additional Preferred Shares at the Additional Closing, (i) the Company's obligation to sell any Additional Preferred Shares and Additional Warrants not elected to be purchased, and the Buyer's obligation to purchase such Additional Preferred Shares and Additional Warrants, shall terminate, and (ii) the Lock-Up Provisions shall be deemed to have expired on the Additional Closing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (Oxygen Biotherapeutics, Inc.)