Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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: (i) The 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 State of Delaware shall have been delivered to such Buyer. (ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE. (iii) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations 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 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 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 Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F. (v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the 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 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 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional 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 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 such Additional Closing Date. (x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing. (xi) 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. (xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively. (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 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 Dates. The obligation date and time of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the any Additional Closing Dates(an “Additional Closing Date” and, 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:
(i) The Certificate of Designations shall be in full force and effect and shall not have been amended since together with the Initial Closing Date, each a “Closing Date”) shall be 10:00 a.m., New York City time, on the sixth (6th) Trading Day following receipt by each Buyer of an Additional Sale Election Notice, subject to the satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 1(b), 6(b) and a copy 7(b) and the conditions set forth in this Section 1(d) or the waiver thereof certified in writing by such Buyer (or such later date as is mutually agreed to by the Secretary of State Company and the Buyers). Notwithstanding the foregoing, the Company shall not be entitled to deliver an Additional Sale Election Notice unless each of the State following conditions is satisfied (or waived in writing by the applicable Buyer) as of Delaware and through the date on which the Company delivers to each Buyer the applicable Additional Sale Election Notice (the “Additional Sale Election Notice Date”), and no Buyer shall be required to purchase Additional Notes and Additional Shares unless each of the following conditions and the conditions set forth in Sections 1(b) and 7(b) are satisfied (or waived in writing by the applicable Buyer) as of and through the applicable Additional Closing Date (the “Additional Sale Election Notice Conditions”): (i) during the period beginning on the date of this Agreement and ending on and including the applicable Additional Closing Date, there shall not have occurred either (x) the public announcement of a pending, proposed or intended Change of Control (as defined in the Notes) which has not been delivered to abandoned or terminated and publicly announced as such Buyer.
or (y) an Event of Default (as defined in the Notes); (ii) The during the forty-five (45)-day period ending on and including such Additional Closing Date, there shall not have occurred an event that with the passage of time or the giving of notice would constitute an Event of Default; (iii) at all times during the period beginning on the date of this Agreement and ending on such Additional Closing Date, the Common Stock Shares shall be authorized for quotation listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading (as defined in Section 3(s)) and the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended from trading nor shall delisting or suspension by any securities exchange or market have been threatened either (A) in writing by such exchange or market or (B) by falling below the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE.
(iii) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations 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 the Company, dated as minimum listing maintenance requirements 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.
exchange or market; (iv) Such Buyer shall have received during the opinion of Winston & ▇▇▇▇▇▇ dated as of such Additional period beginning on the Initial Closing Date, in form, scope Date and substance reasonably satisfactory to such Buyer ending on and in substantially the form of EXHIBIT C attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the 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 including such Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for delivered the purpose of effecting the conversion Shares on a timely basis in accordance with Section 1(e); (v) as of the Preferred Shares Additional Sale Election Notice Date and 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional 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 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 such Additional Closing Date.
, Notes remain outstanding; (xvi) The there is not outstanding any Indebtedness (as defined in the Notes) of the Company shall have delivered or any of the Subsidiaries (as defined in Section 3(a)) that the Company or any Subsidiary is prohibited from issuing, incurring, assuming, maintaining or suffering to such Buyer a secretary's certificate certifying as exist under Section 4(n) or would be prohibited from issuing, incurring, assuming, maintaining or suffering to (Aexist under Section 4(n) if the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect Additional Notes proposed to be issued on the Additional Closing Date were outstanding at the time of such issuance, incurrence, assumption, maintenance or sufferance; (vii) no Permitted Subordinated Indebtedness (as defined in Section 4(n)) that is outstanding on the applicable Additional Closing.
Closing Date matures or otherwise requires or permits redemption or repayment on or prior to the Maturity Date (xias defined in the Notes) 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.
(xii) During the period beginning Notes proposed to be issued on the Additional Share Notice Date and ending on and including the applicable Additional Closing Date, ; and (viii) no capital stock of the Company shall have delivered Conversion Shares upon conversion of the Preferred Shares and the Warrant Shares upon exercise of the Warrants or any Subsidiary is redeemable on or prior to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 Maturity Date of the Additional Notes proposed to be issued on the applicable Additional Closing Date.
(xiv) The Company . Any Additional Closing shall have delivered to such Buyer occur on the applicable Additional Closing Date at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other documents relating to time, date and place as the transactions contemplated by this Agreement as such Buyer or its counsel Company and the Buyers may reasonably requestcollectively designate in writing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Gastar Exploration LTD)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants Stock at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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:
(i) i. The Certificate of Designations Determination for each of the Series A Preferred Stock and Series C Preferred Stock, as applicable, shall be in full force and effect and shall not have been amended since their respective Closing Dates, and a copy of each of them certified by the Initial Closing DateSecretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series B Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of California, and a copy thereof certified by the Secretary of State of the State of Delaware California shall have been delivered to such BuyerBuyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Additional Closing).
(ii) . The Common Stock shall be authorized for quotation trading on The Nasdaq SmallCap Market or one of the Nasdaq National Market or listing on NYSEExchanges, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. SEC or NYSE such Exchange and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares Stock to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSEsuch Exchange.
(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, 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 Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement, the Transaction Documents Registration Rights Agreement, the Warrant or the Certificate of Designations Determination 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 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 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 Winston & ▇▇▇▇▇▇ 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 Exhibit E attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(v) v. The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred SharesStock, and (ii) the 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, amended the Resolutions.
(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 exercise of the WarrantsStock, a number of shares of Common Stock equal to an aggregate of (i) at least 150% of the number of shares of Common Stock Conversion Shares which would be issuable upon conversion or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may beStock, including for such purposes the Additional Preferred Shares and Warrants Stock to be issued at such Additional ClosingClosing and (ii) the number of Warrant Shares which would be issuable upon exercise in full of the then outstanding Warrants.
(viii) . The Irrevocable Transfer Agent Instructions, in substantially identical to the form of EXHIBIT D 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 company and each Subsidiary 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 such Additional Closing Date.
(x) x. The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate Articles of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) . The Company shall have delivered to such Buyer a certified copy of its Certificate Articles of Incorporation as certified by the Secretary of State of the State of Delaware California within ten days of the Additional Closing Date.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 Datedate.
xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series B Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement.
xiv) . The Company shall have taken all actions necessary so that the issuance of the Series B Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded.
xv. 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.
xvi. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cardiodynamics International Corp)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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 discretiondiscretion by providing the Company with prior written consent thereof:
(i) The 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 of the Certificate of Designations that has been certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSE AMEX during the 10 trading days prior to and all of including the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the applicable Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSEDate.
(iii) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations 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 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 including, without limitation, an update as of such Additional Closing Date regarding the representation representations contained in Section 3(c) above).
(iv) Such Buyer shall have received the opinion of Winston Ryan & ▇▇▇▇▇▇ Sudan Opinion, 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(v) The Company shall have executed and delivered to such Buyer (i) the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, Shares and (ii) the Warrants being purchased by such Buyer at the such Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, amended the Resolutions.
(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 150200% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Preferred Shares and 125% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants, as the case may be, including for such purposes the any Additional 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 agentagent and shall be in effect as of such Additional Closing Date.
(ix) The Company shall have delivered to such Buyer a copy of 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 such Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate or an assistant secretary's certificate (so long as the assistant secretary is duly authorized to deliver such certificate) certifying as to (Aa) the Resolutions, (Bb) certified copies of its the Certificate of Incorporation and (Cc) By-lawsBylaws, 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(e)(ii) of the Certificate of Designations.
(xii) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 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 (Intelect Communications Inc)
Additional Closing Dates. The obligation of each Additional Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants Notes at each of the Additional Closings Closing is subject to the satisfaction, at or before the applicable Additional Closing DatesDate, of each of the following conditions, provided that these conditions are for each applicable Additional Buyer's sole benefit and may be waived by such Additional Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Certificate Company shall have executed and delivered to such Additional Buyer the Additional Notes (for the account of Designations such Additional Buyer as such Additional Buyer shall be in full force and effect and instruct), which are being purchased by such Additional Buyer at such Additional Closing pursuant to this Agreement.
(ii) Such Additional Buyer shall not have been amended since received the Initial opinion of Proskauer Rose LLP, the Company's outside counsel, dated as of such Additional Closing Date, in substantially the form of Exhibit D attached hereto.
(iii) The Company shall have delivered to such Additional Buyer a certificate evidencing the formation and good standing of the Company issued by the Secretary of State of Delaware, as of a date within ten (10) days of such Additional Closing Date.
(iv) The Company shall have delivered to such Additional 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 and is required to so qualify, as of a date within ten (10) days of such Additional Closing Date.
(v) The Company shall have delivered to such Additional Buyer a certified copy thereof of the Certificate of Limited Partnership as certified by the Secretary of State of the State of Delaware within ten (10) days of such Additional Closing Date.
(vi) The Company shall have been delivered to such Additional Buyer a certificate, executed by the Secretary of the general partner 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 general partner in a form reasonably acceptable to such Additional Buyer.
, (ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSECertificate of Limited Partnership and (iii) the Limited Partnership Agreement, trading each as in effect at such Additional Closing, in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE.form attached hereto as Exhibit E.
(iiivii) 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 respective 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 or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the respective such Additional Closing Date. Such Additional Buyer shall have received a certificate, executed by the Chief Executive Officer President of the general partner 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 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 Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated hereto as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT Exhibit F.
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the 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 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 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional 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 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 such Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 Units outstanding as of a date within five days of the such Additional Closing Date.
(xivix) The Units (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 maintenance requirements of the Principal Market.
(x) The Company shall have delivered obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) No Event of Default (as defined in the Notes) shall have occurred and be continuing.
(xii) The Notes to be issued at such Buyer such other documents relating Additional Closing shall have been approved for trading on PORTAL, subject only to notice of issuance at or prior to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably requesttime of purchase.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Real Estate Partners L P)
Additional Closing Dates. The obligation of each Buyer ------------------------ hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings Closing is subject to the satisfaction, at or before the Additional Closing DatesDate, 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:
(i) The Certificate Statement 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 State of Delaware Texas shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at AMEX on the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSEDate.
(iii) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations 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 Financial Officer of the Company, dated as of such 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 such the Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of Winston & ▇▇▇▇▇▇ the Company's counsel dated as of such the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT Exhibit C attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.---------
(v) The Company shall have executed and delivered to such Buyer (i) the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants Shares being purchased by such Buyer at the Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, adopted resolutions consistent with Section 3(b)(ii) above and shall not have amended, in a form reasonably acceptable to such Buyer (the Resolutions"RESOLUTIONS").
(vii) As of such 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 Warrants, a number of shares of Common Stock equal to at least 150200% of the number of shares of Common Stock which would be Conversion Shares issuable upon conversion or exercise in full of the then outstanding Preferred Shares and Warrants, as exercise of the case may be, including for such purposes Warrants outstanding on the Additional Closing Date (after giving effect to the Preferred Shares and Warrants to be issued at on such Additional ClosingClosing Date and assuming all such outstanding Preferred Shares and Warrants 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 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 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 10 days of such the Additional Closing DateClosing.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate Articles of Incorporation and (C) By-lawsBylaws, each as in effect at the Additional Closing.
(xi) The Company conditions of Section 1(c) of this Agreement 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 Datebeen satisfied.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 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 Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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:
(i) The 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 State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market Market, NYSE or NYSE AMEX shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSE AMEX and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the such Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market Market, NYSE or NYSEAMEX.
(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 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 Designations 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 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 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 Winston & ▇▇▇▇▇▇ 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 Exhibit C attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants Shares being purchased by such Buyer at the such Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the ResolutionsResolutions 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 exercise of the WarrantsShares, 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may beShares, including for such purposes the Additional any Preferred Shares and Warrants to be issued at such Additional Closing.
(viii) The Irrevocable Transfer Agent Instructions, in the form of EXHIBIT 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 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 10 days of such Additional Closing DateClosing.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutionsresolutions, (Bb) certified copies of its the Certificate of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectivelyDesignations.
(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.
(xivxii) 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 Dates. The obligation of each Buyer the Company hereunder to purchase issue and sell the Additional Preferred Shares and the related Warrants to each Buyer at each of the Additional Closings is subject to the satisfaction, at or before the applicable Additional Closing Dates, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with prior written notice thereof:
(i) The Certificate Such Buyer shall have delivered to the Company the Purchase Price for the Additional Preferred Shares and the related Warrants being purchased by such Buyer at the Additional Closing by wire transfer of Designations shall be in full force and effect and shall not have been amended since immediately available funds pursuant to the Initial Closing Date, and a copy thereof certified wire instructions provided by the Secretary of State of the State of Delaware shall have been delivered to such BuyerCompany.
(ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE.
(iii) The representations and warranties of the Company such Buyer shall be true and correct as of the date when made and as of the respective 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 or the Certificate of Designations to be 24 performed, satisfied or complied with by the Company such Buyer at or prior to the respective 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 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 Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the 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 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 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional 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 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 such applicable Additional Closing Date.
(xiii) The Company No statute, rule, regulation, executive order, decree, ruling or injunction shall have delivered to such Buyer a secretary's certificate certifying as to (A) been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the Resolutions, (B) certified copies consummation of its Certificate any of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer Agreement.
(iv) No legal action, suit or its counsel may reasonably requestproceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Avanir Pharmaceuticals)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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:
(i) The Certificate of Designations Articles Supplementary 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 Delaware Maryland shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation listing on The Nasdaq SmallCap Market or AMEX, the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares and the exercise of the related Warrants to be traded on The Nasdaq SmallCap MarketAMEX, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, AMEX, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Additional Preferred Shares and the related Warrants to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap MarketAMEX, the Nasdaq National Market or NYSE.
(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 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 Designations 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 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 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 Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the 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 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 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional 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 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 such Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.such
Appears in 1 contract
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before each of the Additional Closing 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:
(i) The Company shall have complied with the requirements of Section 1(f).
(ii) The Certificate of Designations Determination, 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 Delaware California shall have been delivered to such Buyer.
(iiiii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing listed on AMEX or NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or 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 (except as set forth in the SECletter to the Company dated February 8, The 1999 from the Nasdaq Stock Market, Inc. Inc., provided that the Company has satisfied the requirements set forth in such letter) either (A) in writing by such exchanges or NYSE (B) by falling below the minimum listing maintenance requirements of such exchanges and all of the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of 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 SmallCap Market, the Nasdaq National Market Market, AMEX or NYSE.
(iiiiv) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations Determination 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 the Company, dated as of such 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 such the Additional Closing Date regarding the representation contained in Section 3(c) above.
(ivv) Such Buyer shall have received the opinion of Winston Bake▇ & ▇▇McKe▇▇▇▇ dated ▇▇▇ed as of such the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT Exhibit C attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(vvi) The Company shall have executed and delivered to such Buyer (i) the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants Shares being purchased by such Buyer at the Additional Closing.
(vivii) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(viiviii) As of such 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 exercise of the WarrantsShares, a number of shares of Common Stock equal to at least 150200% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Preferred Shares (without regard to any limitations on 30 conversions) and 100% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants, as the case may be, including for such purposes the Additional Preferred Shares and related Warrants to be issued at such Additional Closing.
(viiiix) The Irrevocable Transfer Agent Instructions, in the form of EXHIBIT Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agentagent and shall be in effect as of the Additional Closing.
(ixx) 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 (10) days of such the Additional Closing Date.
(xxi) 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 California within ten (10) 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) certified copies of its Certificate the Articles of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 (5) days of the Additional Closing Date.
(xiv) 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 which prohibits the consummation of any of the transactions contemplated by this Agreement.
(xv) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement.
(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 requestrequest upon reasonable advance notice.
Appears in 1 contract
Sources: Securities Purchase Agreement (Avanir Pharmaceuticals)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants from the Company at each of the applicable Additional Closings is subject to the satisfaction, at or before each of the Additional Closing 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:
(i) The Company shall have complied with and satisfied all of the requirements of Section 1(c).
(ii) The Certificate of Designations 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 Department of State of the State of Delaware New York shall have been delivered to such Buyer.
(iiiii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. SEC or NYSE and all the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened 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; and the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Additional Preferred Shares to and the related Additional Warrants, as the case may be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap the Principal Market, the Nasdaq National Market or NYSE.
(iiiiv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the respective 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 with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the respective applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such 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 such the applicable Additional Closing Date regarding the representation contained in Section 3(c) above).
(ivv) Such Buyer shall have received the opinion of Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP dated as of the applicable Additional Closing Date, in form, scope and substance satisfactory to such Buyer.
(vi) Such Buyer shall have received the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Esq. dated as of such the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.Buyer.
(vvii) The Company shall have executed and delivered to such Buyer (i) the Preferred Stock Certificates for the Additional Preferred Shares and the Additional Warrants (in such denominations as such Buyer shall request) for the Additional Preferred Shares, Shares and (ii) the Additional Warrants being purchased by such Buyer at the applicable Additional Closing.
(viviii) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(viiix) As of such the applicable 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 Additional Preferred Shares and exercise of the WarrantsAdditional Warrants being purchased at such Additional Closing, a number of shares of Common Stock equal to at least 150175% of the number of shares of Common Stock which would be issuable upon conversion or in full of such Additional Preferred Shares (without regard to any limitations on conversions) and 175% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Preferred Shares and Warrantssuch Additional Warrants (without regard to any limitations on exercises), as the case may be, including for if such purposes the Additional Preferred Shares and Additional Warrants to be were issued at and outstanding on such Additional ClosingClosing Date.
(viiix) The Irrevocable Transfer Agent Instructions, Instructions shall remain in effect as of the form of EXHIBIT D attached hereto, applicable Additional Closing Date and the Company shall have been delivered cause its Transfer Agent to and acknowledged in writing by the Company's transfer agentdeliver a letter to such Buyer to that effect.
(ixxi) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each active Subsidiary in the state of such corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of such the applicable Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xixii) The Company shall have delivered to such Buyer a certified copy of its the Certificate of Incorporation as certified by the Secretary Department of State of the State of Delaware New York as of a date within ten days of the applicable Additional Closing Date.
(xiixiii) During the period beginning on the Additional Share Notice Date and ending on and including the Additional Closing Date, the The Company shall have delivered Conversion Shares upon conversion of to such Buyer a secretary's certificate, dated as the Preferred Shares and Closing Date, as to (A) the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(iiResolutions, (B) of the Certificate of Designations Incorporation and Sections 2(a(C) and 2(b) of the WarrantsBylaws, respectivelyeach as in effect at the applicable Additional Closing.
(xiiixiv) 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.
(xv) 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.
(xivxvi) The Initial Registration Statement (as defined in the Registration Rights Agreement) covering the resale of the Conversion Shares and Warrant Shares has been declared effective by the SEC on or prior to the applicable Effectiveness Deadline and at all times since being declared effective has been effective and available for the sale of no less than the sum of (A) 100% of the number of Conversion Shares then issuable upon the conversion of all outstanding Preferred Shares (without regard to any limitations on conversions), (B) 100% of the number of Warrant Shares into which all outstanding Warrants are then exercisable (without regard to any limitations on exercises)and (C) the number of Conversion Shares and Warrant Shares outstanding, which were acquired upon conversion or exercise of the Initial Preferred Shares the Initial Warrants, as the case may be, and held by the Buyers at such time.
(xvii) If the applicable Additional Closing is after the Stockholder Meeting Deadline, then the Company shall have received Stockholder Approval on or prior to the Stockholder Meeting Deadline.
(xviii) 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 Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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:
(i) The 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 State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE.
(iii) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations 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 or Chief Financial 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 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 Winston & Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT Exhibit C attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants 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 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 exercise of the WarrantsShares, 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may beShares, including for such purposes the Additional Preferred Shares and Warrants to be issued at such Additional Closing.
(viii) The Irrevocable Transfer Agent Instructions, in the form of EXHIBIT 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 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 10 days of such Additional Closing DateClosing.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectivelyDesignations.
(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 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 (Yieldup International Corp)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants from the Company at each of the applicable Additional Closings is subject to the satisfaction, at or before each of the Additional Closing 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:
(i) The Company shall have complied with and satisfied all of the requirements of Section 1(d).
(ii) The 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 State of Delaware shall have been delivered to such Buyer.
(iiiii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SEC, The Nasdaq Stock SEC or the Principal Market from trading on or delisted from the Principal Market nor shall delisting or suspension by such Principal Market have been threatened 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, Inc. or NYSE ; and all of the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Additional Preferred Shares to be sold at and the Additional Closing Warrants, as the case may be, shall be listed upon The Nasdaq SmallCap the Principal Market, the Nasdaq National Market or NYSE.
(iiiiv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the respective 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 Designations to be performed, satisfied or complied with by the Company at or prior to the respective applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such 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 such the applicable Additional Closing Date regarding the representation contained in Section 3(c) above.
(ivv) Such Buyer shall have received the opinion of Winston ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇, P.C. dated as of such the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT C Exhibit D attached hereto; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(vvi) The Company shall have executed and delivered to such Buyer (i) the Preferred Stock Certificates and the Warrants (in such denominations as such Buyer shall request) for the Additional Preferred Shares, Shares and (ii) the Additional Warrants being purchased by such Buyer at the applicable Additional Closing.
(vivii) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(viiviii) As of such the applicable 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 exercise of the WarrantsShares, a number of shares of Common Stock equal to at least 150200% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Preferred Shares (without regard to any limitations on conversions) and Warrants, as 100% of the case may benumber of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants (without regard to any limitations on exercises), including for such purposes the Additional Preferred Shares and the Additional Warrants to be issued at such Additional Closing.
(viiiix) The Irrevocable Transfer Agent Instructions, Instructions shall remain in effect as of the form of EXHIBIT D attached hereto, Additional Closing Date and the Company shall have been delivered cause its Transfer Agent to and acknowledged in writing by deliver a letter to the Company's transfer agentBuyers to that effect.
(ixx) 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 corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of such the applicable Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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 applicable Additional Closing Date.
(xii) During the period beginning on the Additional Share Notice Date and ending on and including the Additional Closing Date, the The Company shall have delivered Conversion Shares upon conversion of to such Buyer a secretary's certificate certifying as to (A) the Preferred Shares and the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(iiResolutions, (B) of the Certificate of Designations Incorporation and Sections 2(a(C) and 2(b) of the WarrantsBylaws, respectivelyeach as in effect at the applicable 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 applicable Additional Closing Date.
(xiv) The Initial Registration Statement covering the resale of the Conversion Shares and Warrant Shares has been declared effective by the SEC and at all times since being declared effective other than during an Allowable Grace Period and has been effective and available for the sale of no less than the sum of (A) 200% of the number of Conversion Shares then issuable upon the conversion of all outstanding Initial Preferred Shares (without regard to any limitations on conversions), (B) 100% of the number of Warrant Shares into which all outstanding Initial Warrants are then exercisable (without regard to any limitations on exercises) and (C) the number of Conversion Shares and Warrant Shares outstanding, which were acquired upon conversion or exercise of the Initial Preferred Shares or the Initial Warrants, as the case may be, and held by the Buyers at such time.
(xv) The Company shall have received the Stockholder Approval on or prior to the Stockholder Meeting Deadline.
(xvi) An Event of Default (as defined in the Credit Agreement) shall not have occurred on or prior to the Additional Closing Date, no event that with the passage of time and without being cured would constitute an Event of Default shall have occurred and be continuing on the applicable Additional Closing Date and the Company shall otherwise be in compliance in all material respects with all of its obligations and covenants under the Credit agreement as of the applicable Additional Closing Date.
(xvii) 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 Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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 discretiondiscretion by providing the Company with prior written consent thereof:
(i) The 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 of the Certificate of Designations that has been certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSE AMEX during the 10 trading days prior to and including the applicable Additional Closing Date and notification for listing of all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the such Additional Closing shall be listed upon The Nasdaq SmallCap Market, have been delivered to the Nasdaq National Market Market, NYSE or NYSEAMEX.
(iii) The representations and warranties of the Company shall be true and correct 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 Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations 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 Financial 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 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 Winston & Mint▇ ▇▇▇▇▇i▇ Opinion, 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants Shares being purchased by such Buyer at the such Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, amended the Resolutions.
(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 exercise of the WarrantsShares, a number of shares of Common Stock equal to at least 150200% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may beShares, including for such purposes the Additional 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 agentagent and shall be in effect as of such Additional Closing Date.
(ix) The Company shall have delivered to such Buyer a copy of a certificate evidencing the incorporation and good standing of the Company and each Subsidiary 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 such Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate or an assistant secretary's certificate (so long as the assistant secretary is duly authorized to deliver such certificate) certifying as to (Aa) the Resolutions, (Bb) certified copies of its the Certificate of Incorporation and (Cc) By-lawsBylaws, 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 Certificate of Designations.
(xii) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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 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 (Ariad Pharmaceuticals Inc)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants Notes at each of the an Additional Closings is subject to the satisfaction, at or before the Additional Closing 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 discretiondiscretion by providing the Company with prior written notice thereof:
(i) The 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 State of Delaware Company shall have been executed and delivered to such BuyerBuyer the Additional Notes (in such principal amounts as such Buyer shall request) which are being purchased by such Buyer at the Additional Closing pursuant to this Agreement.
(ii) The Common Stock Such Buyer shall be authorized for quotation on The Nasdaq SmallCap Market or have received the Nasdaq National Market or listing on NYSEopinion of Peckar & Abramson, trading in P.C., the Common Stock issuable upon conversion Company'▇ ▇▇▇▇▇de counsel, dated as of the Additional Preferred Shares Closing Date in form acceptable to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by Buyer and that the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSECompany 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 respective 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 Designations 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 the Company, dated as of such the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer includingBuyer; Nothing herein shall be deemed a representation, without limitationwarranty, an update as of such Additional Closing Date regarding covenant or agreement that the representation representations and warranties contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the 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 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 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 or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional Preferred Shares and Warrants to be issued at such Additional Closing.
(viii) The Irrevocable Transfer Agent Instructions, herein that are described in the form of EXHIBIT D attached hereto, Representation Certificate (as defined below) shall have been delivered to be true 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 the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation correct as of a date within ten days of such Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(xiiivi) 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.
(xivvii) 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 shall have been filed with the SEC or a pre-effective amendment to a previously filed Registration Statement to include the Conversion Shares and the Warrant Shares shall have been filed with the SEC.
Appears in 1 contract
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Warrants at each of the Additional Closings is subject to the satisfaction, at or before the Additional Closing 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:
(i) The 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 State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be authorized for quotation on the Nasdaq National Market, The Nasdaq SmallCap Market Market, NYSE or the Nasdaq National Market or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares and the exercise of the related Warrants to be traded on the Nasdaq National Market, The Nasdaq SmallCap Market, the Nasdaq National Market NYSE or NYSE AMEX shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSE AMEX and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Additional Preferred Shares and the related Warrants to be sold at the such Additional Closing shall be listed upon the Nasdaq National Market, The Nasdaq SmallCap Market, the Nasdaq National Market NYSE or NYSEAMEX.
(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 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 Designations 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 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 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 Winston & ▇▇▇▇▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F..
(v) The Company shall have executed and delivered to such Buyer (i) the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants Shares being purchased by such Buyer at the such Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the ResolutionsResolutions 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 or and exercise in full full, as the case may be, of the then outstanding Preferred Shares and Warrants, as the case may be, including for such purposes the Additional 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 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 10 days of such Additional Closing DateClosing.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-lawsBylaws, each as in effect at the such Additional Closing.
(xi) 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.
(xii) 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 the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Certificate of Designations and Sections 2(a) and 2(b) of the Warrants, respectively.
(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.
(xivxii) 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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Sources: Securities Purchase Agreement (Imaging Technologies Corp/Ca)
Additional Closing Dates. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and Notes from the related Warrants Company at each of the applicable Additional Closings is subject to the satisfaction, at or before each of the Additional Closing 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:
(i) The Certificate of Designations Company shall be in full force have complied with and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State satisfied all of the State requirements of Delaware shall have been delivered to such BuyerSection 1(c).
(ii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SEC, The SEC or Nasdaq Stock Market, Inc. from trading on or NYSE delisted from Nasdaq nor shall delisting or suspension by Nasdaq have been threatened either (A) in writing by the SEC or Nasdaq or (B) by falling below the minimum listing maintenance requirements of Nasdaq and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing Notes shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSENasdaq.
(iii) The representations and warranties of the Company shall be true and correct as of the date when made of this Agreement and as of the respective 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 or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the respective applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such 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 such the applicable Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of Winston & ▇▇▇▇Wils▇▇ 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; and such Buyer shall have received the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇osa▇▇, Esq. ▇.C. dated as of such the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F.Exhibit C attached hereto.
(v) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates Notes (in such denominations as such Buyer shall request) for the Additional Preferred Shares, and (ii) the Warrants Notes being purchased by such Buyer at the applicable Additional Closing.
(vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions.
(vii) As of such the applicable 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 exercise of the WarrantsNotes, a number of shares of Common Stock equal to at least 150100% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Preferred Shares and Warrants, as the case may beNotes (without regard to any limitations on conversions), including for such purposes the Additional Preferred Shares and Warrants Notes to be issued at such Additional Closing.
(viii) The Irrevocable Transfer Agent Instructions, Instructions shall remain in effect as of the form of EXHIBIT D attached hereto, Additional Closing Date and the Company shall have been delivered cause its Transfer Agent to and acknowledged in writing by the Company's transfer agentdeliver a letter to such Buyer 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 the state of such corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of such the applicable Additional Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xi) 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 applicable Additional Closing Date.
(xiixi) During The Company shall have delivered to such Buyer a secretary's certificate, dated as of the period beginning on the Additional Share Notice Date and ending on and including the applicable Additional Closing Date, certifying as to (A) the Company shall have delivered Conversion Shares upon conversion of the Preferred Shares and the Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(iiResolutions, (B) of the Certificate of Designations Incorporation and Sections 2(a(C) and 2(b) of the WarrantsBylaws, respectivelyeach as in effect at the applicable Additional Closing.
(xiiixii) 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 twenty days of the applicable Additional Closing Date.
(xivxiii) The Company shall not have delivered to such Buyer such other documents relating updated the schedules or added additional schedules to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably requestrepresentations and warranties contained in Section 3.
Appears in 1 contract