Additional Closing Date. 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, at or before the applicable 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) The Company shall have executed and delivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion 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 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) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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 shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes and the applicable Additional Warrants. (xiii) 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 material 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. (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. The obligation of each Buyer hereunder to purchase the Additional Notes Preferred Shares and the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before the applicable such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s '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 duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Notes Preferred Shares (in such principal amounts as such Buyer shall request) and related Additional Warrants (allocated in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as 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 (x) MayerSmith, BrownAnderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & Maw LLP▇▇▇▇▇▇▇▇, L.L.P., the Company’s '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 F attached hereto.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions Instructions, in the form of Exhibit E attached hereto, which instructions shall remain have been delivered to and acknowledged in effect as of writing by the applicable Additional Closing Date and the Company shall cause its Company's transfer agent to deliver a letter to such Buyer to that effectagent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation formation and good standing of the Company and each Subsidiary in such corporation’s state its jurisdiction of incorporation formation issued by the Secretary of State (or comparable office) of such state of incorporation 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 '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 State of Maryland Company conducts business and is required to so qualify, 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 (or a fax or pdf copy of such certificate) within 10 ten (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 and dated as of the applicable Additional Closing Date, as to (i) the Resolutionsresolutions 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 applicable Additional Closing, in the form attached hereto as Exhibit I.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 applicable 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 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.H.
(ix) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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 '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.
(xix) The Common Stock (I) shall be designated for quotation or listed on the Principal Market, 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 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 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.
(xiixi) 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 Securities.
(xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the applicable Additional WarrantsCompany shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder.
(xiii) During the period beginning on the Initial Closing Date and ending on and including the applicable Additional Closing DateNo litigation, neither the Company nor any of its Subsidiaries statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in material default under any mortgage, indenture court or instrument under governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which there may be issued or by which there may be secured or evidenced prohibits the consummation of any Indebtedness of the Company or any of its Subsidiariestransactions 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. The obligation of each Buyer hereunder to purchase the Additional Notes Preferred Shares and the related Additional Warrants at an the Additional Closing is subject to the satisfaction, at or before the applicable each Additional Closing Date, of each of the following conditions, provided that these conditions are for each such Buyer’s 's sole benefit and may be waived by such the Buyer at any time in its sole discretion by providing the Company and each Buyer with prior written notice thereof:
(i) The Company shall have executed complied with the requirements of Section 1(c) and delivered to such Buyer all of the Additional Notes (Notice Conditions and Effectiveness Conditions set forth in such principal amounts as such Buyer shall requestSection 1(d) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of (x) Mayer, Brown, ▇▇▇▇ & Maw LLP, the Company’s counsel, dated been satisfied 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.
(vii) The Company Articles of Amendment shall be in full force and effect and shall not have delivered to such Buyer a certificate evidencing been amended since 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 Initial Closing Date.
(vi) The Company shall have delivered to such Buyer , and a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware within 10 days of the applicable Additional Closing DateIndiana shall have been delivered to such Buyer.
(viiiii) 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 shall have delivered to such Buyer a certificate, executed by has complied with the Secretary listing requirements of the Company dated Nasdaq National Market or the NYSE, as applicable, for the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the applicable Additional Closing Date, Preferred Shares and the related Warrants 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.case may be.
(viiiiv) 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 or the Articles of Amendment 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 may reasonably request, including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the form opinions of Barn▇▇ & Thor▇▇▇▇▇ ▇▇▇ Snel▇ & ▇ilm▇▇ ▇▇▇ dated as of the Additional Closing Date in substantially the forms of Exhibit D, attached hereto as Exhibit J.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) In The Irrevocable Transfer Agent Instructions, in the event that the Company is requiring the purchase form of Additional Notes pursuant to a Company Additional Note NoticeExhibit E attached hereto, such Buyer shall have received a certificate, executed been delivered to and acknowledged in writing by the Chief Executive Officer of the Company, dated 's transfer agent and shall be in effect as of the applicable Additional Closing Date, stating that the Conditions to Company Additional Note Notice set forth in Section 1.3(c)(i) have been satisfiedClosing.
(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 '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.
(xixiv) The Common Stock Additional Registration Statement (Ias defined in the Registration Rights Agreement) shall be designated for quotation or listed on the Principal Market, (II) shall not have been suspended, as of the applicable Additional Closing Date, declared effective by the SEC on or before the Principal Market from trading on date which is 80 days after the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the applicable Additional Closing Share Notice 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 shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes and the applicable Additional Warrants.
(xiii) 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 material 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.
(xivxv) The Company shall have delivered to such Buyer the Buyers such other documents relating to the transactions contemplated by this Agreement as such Buyer the Buyers or its their counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at an each of the applicable Additional Closing Closings is subject to the satisfaction, at or before each of the applicable Additional Closing DateDates, of each of the following conditions, provided that these conditions are for each Buyer’s '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 executed and delivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) and related Additional Warrants (in such principal amounts as such Buyer shall request), in each case which are ) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion opinions of (x) MayerMilbank, BrownTweed, Hadley & McCloy LLP, the Company's outside counsel, and Brian O'Donog▇▇▇, ▇he ▇▇▇▇▇▇y's General Counsel, each dated as of the ▇▇▇▇▇▇▇▇▇▇ & Maw LLP, the Company’s counsel, dated as of the applicable Additional ▇▇▇▇tional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit Exhibits 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 's state of incorporation issued by the Secretary of State of such state of incorporation 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 's qualification as a foreign corporation and good standing issued by the Secretary of State of the State of Maryland New York 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 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) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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 '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.
(xix) The Common Stock (I) shall be designated for quotation or listed on the Principal Market, 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 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.
(xiixi) 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 and the Additional Warrants being purchased at the applicable Additional WarrantsClosing.
(xiiixii) 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 material 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. The obligation of each Buyer hereunder ----------------------- to purchase the Additional Notes Preferred Shares and the related Additional Warrants at an the Additional Closing is subject to the satisfaction, at or before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s '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 thereofdiscretion:
(i) The Company Articles of Amendment shall be in full force and effect and shall not have executed and delivered to such Buyer been amended since the Additional Notes (in such principal amounts as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of (x) Mayer, Brown, ▇▇▇▇ & Maw LLP, the Company’s counsel, dated as of the applicable Additional Initial 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 thereof certified by the Secretary of State of the State of Delaware within 10 days of the applicable Additional Closing DateFlorida shall have been delivered to such Buyer.
(viiii) The Company 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 delivered to such Buyer a certificate, executed been suspended by the Secretary SEC or the Principal Market at any time after the Initial Closing Date and all of the Company dated as Conversion Shares and Warrant Shares issuable upon conversion of the applicable Additional Preferred Shares or exercise of the Additional Warrants, as the case may be, to be sold at the Additional Closing Date, as to (i) shall be listed or quoted upon the Resolutions, (ii) the Certificate of Incorporation and Principal Market.
(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 or the Articles of Amendment to be performed, satisfied or complied with by the Company at or prior to the applicable respective Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chairman ( so long as the Chairman is an executive officer) or 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 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 outside counsel dated as of such Additional Closing Date, in scope and substance substantially in the form of Exhibit C attached hereto 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 J.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) In The Company shall have delivered to such Buyer a certificate evidencing the event that incorporation and good standing of the Company is requiring the purchase and each subsidiary in such corporation's state of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed incorporation issued by the Chief Executive Officer Secretary of State of Florida as of a date within ten days of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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 secretary's certificate certifying as to (a) the Resolutions, (b) the Articles of Incorporation and (c) Bylaws, each as in effect at the 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 the 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 '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.
(xiixiv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for complied with the sale conditions of the applicable Additional Notes and the applicable Additional WarrantsSection 1(d).
(xiiixv) During The Registration Statement covering the period beginning 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, shall be available for resale of the Conversion Shares and Warrant Shares on the Initial Additional Closing Date and ending on 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 the applicable Additional Closing Date, neither the Company nor for such purposes any of its Subsidiaries shall have been in material default under any mortgage, indenture or instrument under which there may Preferred Shares and Warrants to be issued or by which there may be secured or evidenced any Indebtedness of at the Company or any of its SubsidiariesAdditional Closing.
(xivxvi) 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. (i) The obligation of each Buyer Buyers hereunder to purchase Additional Preferred Shares at the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit of the Buyers and may be waived by such Buyer a Buyer, with respect to it, at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion:
(i) A. The Company Certificate of Amendment shall be in full force and effect and shall not have executed and delivered to such Buyer been amended, without the Additional Notes (in such principal amounts as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of (x) Mayer, Brown, ▇▇▇▇ & Maw LLP, the Company’s counsel, dated as knowledge or consent of the applicable Additional Buyers, since the Initial 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 thereof certified by the Secretary of State of the State of Delaware within 10 days of the applicable Additional Closing DateNew York shall have been delivered to Buyers.
(vii) B. The Company Common Stock shall be authorized for quotation on AMEX, and shall not have delivered to been suspended from trading on or delisted from such Buyer a certificatemarket, executed nor shall delisting or suspension 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 such market have been threatened in effect at the applicable Additional Closing, in the form attached hereto as Exhibit I.writing.
(viii) C. 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 which shall be true as of that 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 or the Certificate of Amendment 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 which also shall include an update as to such other matters as may be reasonably requested by such Buyer of the Additional Closing Date regarding the representation contained in the form attached hereto as Exhibit J.Section 3(c) above.
(ix) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer D. Buyers shall have received a certificate, executed by the Chief Executive Officer opinion of the Company▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of the applicable Additional Closing Date, stating that Date in substantially the Conditions to Company Additional Note Notice set forth in Section 1.3(c)(i) have been satisfiedform of Exhibit V attached hereto.
(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 shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes and the applicable Additional Warrants.
(xiii) 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 material 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.
(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 (Andrea Electronics Corp)
Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Notes and Preferred Shares at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s '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 duly executed and delivered to such Buyer the Additional Notes Preferred Shares (in such principal amounts numbers as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion 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 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, 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 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.E.
(ix) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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.
(xiiii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market, 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 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.
(xiiiv) 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 and the applicable Additional WarrantsSecurities.
(xiiiv) During The Certificate of Designations in 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 form attached hereto as Exhibit A shall have been in material default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company or any of in accordance with its Subsidiariesterms and shall not have been amended.
(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. The obligation of the Company hereunder to issue and sell the Additional Units to each Buyer hereunder to purchase at the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the delivery to the Company of the Additional Notice by the Buyer and the satisfaction, at or before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s the Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretion by providing the Company each Buyer with prior written notice thereof:
(i) The Company Such Buyer shall have executed and delivered to such Buyer the Company the Purchase Price for the Additional Notes (in such principal amounts as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are Units being purchased by such Buyer at the applicable Additional Closing by wire transfer of immediately available funds pursuant to this Agreementthe wire instructions provided by the Company.
(ii) Such Buyer shall have received the opinion 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 the applicable Additional Closing, in the form attached hereto as Exhibit I.
(viii) The representations and warranties of the Company such Buyer in this Agreement 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 such Buyer 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 such Buyer 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) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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.
(xiiii) The Common Stock (I) shall be designated for quotation No suit, action 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 shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes and the applicable Additional Warrants.
(xiii) 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 other proceeding shall have been in material default under any mortgage, indenture commenced (and be pending) which seeks to restrain or instrument under which there may be issued prohibit or by which there may be secured questions the validity or evidenced any Indebtedness legality of the Company or any of its Subsidiaries.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as the Transaction Documents, nor shall any such Buyer suit, action or its counsel may reasonably requestproceeding be threatened.
(iv) All consents, Permits, authorizations, approvals, waivers and amendments required for the consummation of the transactions contemplated by the Transaction Documents shall have been obtained.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tmci Electronics Inc)
Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Notes and Preferred Shares at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before the applicable 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) The Company shall have duly executed and delivered to such Buyer the Additional Notes Preferred Shares (in such principal amounts numbers as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion 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 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, 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 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.E.
(ix) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to 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.
(xiiii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market, 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 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.
(xiiiv) 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 and the applicable Additional WarrantsSecurities.
(xiiiv) During The Certificate of Designations in 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 form attached hereto as Exhibit A shall have been in material default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company or any of in accordance with its Subsidiariesterms and shall not have been amended.
(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. The obligation of each Buyer hereunder to purchase the Additional Notes Preferred Shares and the related Additional Warrants at an the Additional Closing Closings is subject to the satisfaction, at or before each of the applicable Additional Closing DateDates, of each of the following conditions, provided that these conditions are for each Buyer’s '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 thereofdiscretion:
(i) The Company shall have executed complied with the requirements of Section 1(c) and delivered to such Buyer all of the Additional Notes (Notice Conditions set forth in such principal amounts as such Buyer shall requestSection 1(d) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of (x) Mayer, Brown, ▇▇▇▇ & Maw LLP, the Company’s counsel, dated been satisfied 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.
(vii) The Company Certificate of Amendment, shall be in full force and effect and shall not have delivered to such Buyer a certificate evidencing been amended, without the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State knowledge or consent of the State of Maryland as of a date within 10 days of Buyer, since the applicable Additional Initial Closing Date.
(vi) The Company shall have delivered to such Buyer , and a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware within 10 days of the applicable Additional Closing DateNew York shall have been delivered to Buyer.
(viiiii) The Company Common Stock shall be authorized for quotation on AMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on AMEX shall not have delivered to such Buyer a certificate, executed been suspended by the Secretary SEC, AMEX and all of the Company dated as Conversion Shares issuable upon conversion of the applicable Additional Preferred Shares to be sold at 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 I.shall be listed upon AMEX.
(viiiiv) 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 or the Certificate of Amendment 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 which also shall include an update as to such other matters as may be reasonably requested by such Buyer of the Additional Closing Date regarding the representation contained in the form attached hereto as Exhibit J.Section 3(c) above.
(ixv) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer opinion of the Company▇▇▇▇▇ & Wood LLP, dated as of the applicable 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, stating that the Conditions 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 Company 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 Note Notice set forth Preferred Shares and related Warrants to be issued at such Additional Closing.
(ix) The Irrevocable Transfer Agent Instructions, in Section 1.3(c)(i) the form of Exhibit D attached hereto, shall have been satisfieddelivered 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 letter from certificate evidencing the Company’s transfer agent 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 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 each as in effect at 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 shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the applicable Additional Notes and the applicable Additional WarrantsClosing.
(xiii) 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 material 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.
(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 (Andrea Electronics Corp)
Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants from the Company at an any Additional Closing is subject to the satisfaction, at or before the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s '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 Company Initial Closing shall have executed and delivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreementoccurred.
(ii) Such Buyer shall have received the opinion 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 complied with the incorporation requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and good standing all of the Company and each Subsidiary Additional Sale Notice Election Conditions set forth in such corporation’s state of incorporation issued by the Secretary of State Section 1(d) shall have been satisfied as 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 the applicable Additional Closing, in the form attached hereto as Exhibit I.
(viii) The representations and warranties of the Company (including any exceptions thereto contained in the schedules hereto) 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 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, have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the applicable such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable 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 have received (A) the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 J.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) In The Company shall have delivered to such Buyer a certificate evidencing the event that incorporation and good standing of the Company is requiring the purchase and each Subsidiary in such entity's state or other jurisdiction of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed incorporation or organization issued by the Chief Executive Officer Secretary of the Company, dated State (or other applicable authority) of such state of incorporation or organization as of the applicable a date within ten (10) days of such Additional Closing Date, stating that the Conditions to 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 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 's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the applicable such 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.
(xiixiii) 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 and the applicable Additional Warrants.
(xiii) 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 material 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.
(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.
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