Closing Conditions. The obligation of the parties to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions: 3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions: a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement. b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact. c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact. d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”). 3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions: a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date). b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing. c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement. 3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions. a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD. b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange. c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor. d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment. e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment. f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 4 contracts
Sources: Securities Purchase Agreement (Morgan Stanley), Securities Purchase Agreement (Mitsubishi Ufj Financial Group Inc), Securities Purchase Agreement (Mitsubishi Ufj Financial Group Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Companyitems set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement (an the update of the register of shareholders (being prime facie evidence of legal title) to reflect the issuance of the Securities);
(iv) the Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Purchaser the Preliminary Prospectus and the Prospectus as required thereunder;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Ordinary Shares shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 4 contracts
Sources: Securities Purchase Agreement (One & One Green Technologies. INC), Securities Purchase Agreement (One & One Green Technologies. INC), Securities Purchase Agreement (Park Ha Biological Technology Co., Ltd.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein;
(except for any such representations or warranties made as of the date hereof or as of another dateii) all obligations, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects when made and on the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true herein;
(ii) all obligations, covenants and correct on and as agreements of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) all of the existing debtholders of the Company and its Subsidiaries, including but not limited to, those holders identified on Schedule 3.1(aa) and collectively referred to herein as the “Existing Debtholders”, which schedule sets forth the holders of all outstanding indebtedness of the Company and its Subsidiaries, shall each have executed and delivered the Purchasers an agreement whereby each Existing Debtholders shall have converted such indebtedness to a series of preferred stock of the Company, on terms and conditions satisfactory to the Purchasers (including, without limitation, a provision waiving any requirement to reserve shares of Common Stock underlying such preferred stock until the Authorized Share Approval has occurred), and shall have released the Company from all obligations in connection with such indebtedness (including releasing any liens);
(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties Closing), and, at any time prior to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date, trading in securities generally as reported by Bloomberg L.P. shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termeach Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 4 contracts
Sources: Securities Purchase Agreement (uVuMobile, Inc), Securities Purchase Agreement (uVuMobile, Inc), Securities Purchase Agreement (uVuMobile, Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the filing of the Prospectus Supplement with the Commission;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Global Interactive Technologies, Inc.), Securities Purchase Agreement (Humacyte, Inc.), Securities Purchase Agreement (Humacyte, Inc.)
Closing Conditions. The obligation of the parties hereto to complete consummate the transactions contemplated by Section 2 hereof (purchase and sale of the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of Backstop Shares pursuant to this Backstop Subscription Agreement is subject to the following conditions:
3.1. The obligation : (a) there shall not be in force any injunction or order enjoining or prohibiting the issuance and sale of the Investor Backstop Shares under this Backstop Subscription Agreement; (b) all conditions precedent to complete the Stock Purchase closing of the Transaction under the Transaction Agreement shall be conditioned on the satisfaction have been satisfied or waiver waived (as determined by the Investor parties to the Transaction Agreement and other than those conditions under the Transaction Agreement which, by their nature, are to be fulfilled at or substantially contemporaneously with the closing of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel Transaction); (c)(i) solely with respect to the CompanyBackstop Investor’s obligation to close, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of made by Issuer, and (ii) solely with respect to Issuer’s obligation to close, the Company contained representations and warranties made by the Backstop Investor, in each case, in this Backstop Subscription Agreement shall be true and correct on and as of the date hereof and on and in all material respects as of the Closing Date as if made on other than (x) those representations and warranties which are qualified by materiality, Material Adverse Effect or similar qualification, which shall be true and correct in all respects as of the Closing Date Date, and (except for any such y) those representations or and warranties expressly made as of the date hereof or as of another an earlier date, which shall be true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar qualification, all respects) as of such date), in each case without giving effect to the consummation of the Transactions; and (d)(i) solely with respect to the Investor Backstop Investor’s obligation to purchase the Backstop Shares pursuant to this Backstop Subscription Agreement, Issuer shall have received a certificate of the chief executive officer performed, satisfied and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed complied in all material respects with all of its covenants covenants, agreements and obligations in conditions required by this Backstop Subscription Agreement that are to be performed performed, satisfied or complied with by it at or prior to the Closing, and (ii) solely with respect to the Issuer’s obligation to close, the Backstop Investor shall have received a certificate of a senior officer of the Companyperformed, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed satisfied and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed complied in all material respects with all of its covenants covenants, agreements and obligations in conditions required by this Backstop Subscription Agreement that are to be performed performed, satisfied or complied with by it at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (BurTech Acquisition Corp.), Backstop Subscription Agreement (BurTech Acquisition Corp.), Backstop Subscription Agreement (ACE Convergence Acquisition Corp.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on sell Shares at a Closing are subject to the satisfaction by the Purchaser, or waiver by the Company, of each of the following conditions:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchaser contained in this Agreement herein shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any unless such representations or and warranties made speak as of the date hereof or as of another a specific date, in which case they shall be true and correct as of such date), and ;
(ii) the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company Purchaser shall have performed in and complied with all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Purchaser required to be performed at or prior to the Closing, and Closing Date; and
(iii) the Investor Purchaser shall have received delivered the items set forth in Section 2.4(b) of this Agreement applicable for such Closing.
(b) The obligations of the Purchaser hereunder to acquire Shares at a certificate of a senior officer of Closing are subject to the satisfaction by the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company Purchaser, of each of the following conditions:
a. The (i) the representations and warranties of the Investor Company contained in this Agreement herein shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any unless such representations or and warranties made speak as of the date hereof or as of another a specific date, in which case they shall be true and correct as of such date).;
b. The Investor (ii) the Company shall have performed in and complied with all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.
c. On the Closing Date, ;
(iii) the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed delivered the items set forth in Section 2.4(a) of this Agreement applicable for such Closing;
(iv) the Company shall have obtained all authorizations, approvals and permits, if any, of any Person required in connection with the Secretary of State lawful issuance and sale of the State Shares to the Purchaser at such Closing, and all such authorizations, approvals and permits shall be effective as of Delaware the Preferred Stock CoD.such Closing;
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock (v) there shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” no Material Adverse Effect with respect to the transactions contemplated by this Agreement, without Company since the imposition of any term, condition or consequence date hereof;
(vi) the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and Registration Statement shall be in full force and effect; and
(vii) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities, nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termthe Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Shares at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Nanoviricides, Inc.), Securities Purchase Agreement (Nanoviricides, Inc.), Securities Purchase Agreement (Nanoviricides, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless such representation or warranty as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the ClosingClosing Date shall have been performed;
(iii) with respect to a Purchaser in the State of Israel, written confirmation that as of the date of any offer of securities, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying such Purchase is a Qualified Investor), that such Purchaser is fully aware of the significance of being a Qualified Investor pursuant to such criteria and that factit has given its consent, in form and substance reasonably satisfactory in all respects to the Company; and
(iv) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
d. On (b) The respective obligations of the Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless such representation or warranty is as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Investors ADSs and Company’s securities shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to occurred after the transactions contemplated by date of this AgreementAgreement any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Quoin Pharmaceuticals, Ltd.), Securities Purchase Agreement (Quoin Pharmaceuticals, Ltd.), Securities Purchase Agreement (Quoin Pharmaceuticals, Ltd.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Companyitems set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the Registration Statement shall be effective and available for the issuance and sale of the Shares hereunder and the Company shall have delivered to such Purchaser the Prospectus and the Prospectus Supplement as required thereunder;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Ordinary Shares shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition occurred any material outbreak or escalation of any term, condition hostilities or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals other national or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition international calamity not currently existing as of the Securities (but not for the conversion date hereof of the Preferred Stock into Common Stock) (collectivelysuch magnitude in its effect on, with those set forth in 3.3(c)or any material adverse change in, (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedTrading Market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Primech Holdings LTD), Securities Purchase Agreement (Blue Hat Interactive Entertainment Technology), Securities Purchase Agreement (Blue Hat Interactive Entertainment Technology)
Closing Conditions. The obligation of the parties hereto to complete consummate the transactions contemplated by Section 2 hereof (purchase and sale of the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of Equity Support Shares pursuant to this Equity Support Agreement is subject to the following conditions:
3.1. The obligation : (a) there shall not be in force any injunction or order from an entity having jurisdiction that enjoins or prohibits the issuance and sale of the Investor Equity Support Shares under this Equity Support Agreement; (b) all conditions precedent to complete the Stock Purchase Transaction Closing under the Transaction Agreement shall be conditioned on the satisfaction have been satisfied or waiver waived (as determined by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel parties to the CompanyTransaction Agreement and other than those conditions under the Transaction Agreement which, as by their nature, are to be fulfilled at or substantially contemporaneously with the validity of Transaction Closing); (c) (i) solely with respect to each Subscriber’s obligation to close, the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of made by the Company contained Issuer, and (ii) solely with respect to the Issuer’s obligation to close, the representations and warranties made by the applicable Subscriber in this Equity Support Agreement shall be true and correct on and as of the date hereof and on and in all material respects as of the Closing Date as if made on other than (x) those representations and warranties which are qualified by materiality, Material Adverse Effect or similar qualification, which shall be true and correct in all respects as of the Closing Date Date, and (except for any such y) those representations or and warranties expressly made as of the date hereof or as of another an earlier date, which shall be true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar qualification, all respects) as of such date), and in each case without giving effect to the Investor consummation of the Transactions; (d) solely with respect to each Subscriber’s obligation to close, at or prior to the Transaction Closing, Issuer shall have received cash proceeds from the PIPE Investment of at least $45.0 million in an aggregate amount, all of which shall be immediately available to Issuer upon the Transaction Closing (the “PIPE Cash”); (e) solely with respect to each Subscriber’s obligation to close, there shall have been no notice of default delivered pursuant to, an event of default occurring or be continuing under, and no acceleration of amounts outstanding under the indenture dated December 30, 2021, between the Issuer and Wilmington Savings Fund Society, FSB, as trustee governing the Issuer’s $50 million aggregate principal amount of convertible notes; (f) solely with respect to each Subscriber’s obligation to close, the applicable Collateral Account Deposit and the Option Premium Payment shall have been completed and each Subscriber shall have a valid and perfected first priority security interest in their applicable Collateral Accounts and shall have control (within the meaning of Section 8-106 and 9-106 of the Uniform Commercial Code as in effect in the State of New York) of the Collateral Accounts pursuant to the Control Agreement, such Control Agreement and the Pledge Agreement to be in the form and substance reasonably satisfactory to such Subscriber and such Pledge Agreement has been ratified by the Issuer and the Issuer shall have paid to the Securities Intermediary or deposited into the Collateral Account the maximum amount of the Securities Intermediary’s fees and expenses payable pursuant to the Control Agreement; (g) solely with respect to each Subscriber’s obligation to close, on the Closing Date the Issuer shall have delivered to the Subscribers a solvency certificate of (the “Solvency Certificate”) with respect to the Issuer signed by a director, the chief executive officer and or the chief financial officer of the Company, dated Issuer certifying as to the solvency of the Issuer as of the date hereof, (if different) the date of each Pledge Agreement and as of and immediately after the Closing DateDate within the same certificate, substantially which Solvency Certificate is reasonably satisfactory to the Subscribers; (h) solely with respect to each Subscriber’s obligation to close, the forms of representation letters and certificates required from such Subscriber and its broker (nominee) have been agreed to by the parties, and such representation letters and certificates shall have been executed by such Subscriber’s broker (nominee) and delivered to the Issuer and its counsel prior to the Transaction Closing so that the Equity Support Shares will be delivered to each Subscriber or such Subscriber’s nominee through the facilities of The Depository Trust Company (the “DTC”), maintained in the form set forth in Schedule 3.1(bof book entries on the books of the DTC and allowed to be settled through the DTC’s regular book-entry settlement services without any restrictive legend within five (5) business days after the Effectiveness Deadline (as defined below); (i) solely with respect to this Agreementeach Subscriber’s obligation to close, certifying to that fact.
c. The Company the Issuer shall have performed caused its Cayman Islands counsel to deliver to the Subscribers at the Transaction Closing an opinion regarding the validity of this Equity Support Agreement and the transactions contemplated hereby, such opinion to be in form and substance reasonably satisfactory to the Subscribers; (j) (A) solely with respect to each Subscriber’s obligation to close, the Issuer shall have performed, satisfied and complied in all material respects with all of its covenants covenants, agreements and obligations in conditions required by this Equity Support Agreement that are to be performed performed, satisfied or complied with by it at or prior to the Closing, and (B) solely with respect to the Investor Issuer’s obligation to close, the applicable Subscriber shall have received a certificate of a senior officer of the Companyperformed, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed satisfied and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed complied in all material respects with all of its covenants covenants, agreements and obligations in conditions required by this Equity Support Agreement that are to be performed performed, satisfied or complied with by it at or prior to the Closing.
c. On . For the avoidance of doubt, PIPE Cash excludes (1) any proceeds raised pursuant to an Excluded Financing (as defined below) and (2) proceeds from the Trust Account (as defined below); and (k) solely with respect to each Subscriber's obligation to close, on or before the Closing Date, Date the Investors Issuer shall have duly executed and delivered to the Company each Subscribers certified copies of resolutions of the Registration Rights board of directors and the Shaolin transaction committee passed expressly authorizing this Equity Support Agreement, each Pledge Agreement and the Investor each Control Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable satisfactory to the Company and the InvestorSubscribers.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Equity Support Agreement (TH International LTD), Equity Support Agreement (TH International LTD), Equity Support Agreement (Silver Crest Acquisition Corp)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver applicable Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchaser contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of Purchaser required to be performed at or prior to the Closingapplicable Closing Date shall have been performed; and
(iii) the delivery by Purchaser of the items set forth in Section 2.4(b) or 2.4(d), as applicable, of this Agreement.
(b) The obligations of Purchaser hereunder in connection with each Closing are subject to the following conditions being met:
(i) the Purchaser’s board of directors, in its sole discretion, has approved the Purchase Notice and the Investor shall have received a certificate of a senior officer Company’s proposed use of the Companyproceeds relating thereto;
(ii) there is no existing Event of Default and no existing event which, dated as with the passage of time or the giving of notice, would constitute an Event of Default;;;
(iii) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made on the applicable Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered immediately after giving effect to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) purchase and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation sale of the Company to complete Debentures described in the Stock applicable Purchase shall be conditioned on the satisfaction or waiver by the Company Notice, of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (iv) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.
c. On the applicable Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listing, subject to official notice of issuance, on performed;
(v) the New York Stock Exchange.
c. The Board of Directors delivery by the Company of the Federal Deposit Insurance Corporation items set forth in Section 2.4(a) or 2.4(c), as applicable, of this Agreement;
(vi) the Purchaser will have a first priority security interest in all proceeds from the purchase and sale of the Debentures described in the applicable Purchase Notice;
(vii) there shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” been no Material Adverse Effect with respect to the transactions contemplated Company since the date hereof; and
(viii) from the date hereof to each Closing Date, trading in securities generally as reported by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but Bloomberg L.P. shall not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained suspended or made and limited, or minimum prices shall be not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in full force and its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termPurchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any Securities at the applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (NextPlat Corp), Securities Purchase Agreement (Progressive Care Inc.), Securities Purchase Agreement (NextPlat Corp)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed in all material respects;
(iii) the delivery by each Purchaser of the items set forth in Section 2.3(b) of this Agreement; and
(iv) the delivery to the Company’s Board of Directors of a written opinion from Emerging Growth Equities, Inc. stating that the transactions contemplated hereby are fair to the Company contained and the Stockholders from a financial point of view.
(b) The respective obligations of the Purchasers hereunder in this Agreement connection with the Closing are subject to the following conditions being met:
(i) the representations and warranties made by the Company in ARTICLE III hereof qualified as to materiality shall be true and correct on and as of the date hereof and on and the Closing Date, except to the extent any such representation or warranty expressly speaks as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date), and, the representations and warranties made by the Investor Company in ARTICLE III hereof not qualified as to materiality shall have received a certificate be true and correct in all material respects as of the chief executive officer date hereof and chief financial officer of the Company, dated as of the Closing Date, substantially except to the extent any such representation or warranty expressly speaks as of an earlier date, in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company which case such representation or warranty shall have performed be true and correct in all material respects as of such earlier date;
(ii) all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On whether under this Agreement or the Closing Dateother Transaction Documents, the Company shall have duly executed and delivered to been performed;
(iii) the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver delivery by the Company of the following conditions:items set forth in Section 2.3(a) of this Agreement;
a. The representations and warranties of (iv) the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion purchase and sale of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on Shares and the New York Stock Exchange.
c. The Board of Directors consummation of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the other transactions contemplated by this Agreementthe Transaction Documents, without the imposition of any term, condition or consequence the acceptance all of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals effect;
(v) no judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detrimentissued, and no provision action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of any applicable law the transactions contemplated hereby or regulation, judgment, injunction, in the other Transaction Documents;
(vi) no stop order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity suspension of trading shall have instituted an investigation been imposed by Nasdaq, the Commission or proceeding any other governmental or regulatory body with respect to public trading in the Common Stock that could result in such a judgment, injunction, order or decreeis continuing; and
(vii) there shall have been no Material Adverse Effect with respect to the Company since the date hereof.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Strobeck Matthew), Securities Purchase Agreement (Feinberg Family Trust), Securities Purchase Agreement (Vermillion, Inc.)
Closing Conditions. 6.1. Conditions to Each Party's Obligations to Effect the Transactions Contemplated Hereby. The obligation respective obligations of the parties each party to complete effect the transactions contemplated by Section 2 hereof (the “Stock Purchase”) hereby shall be conditioned on subject to the satisfaction fulfillment at or waiver prior to the Closing Date of the following conditions:
3.1(a) There shall be no effective injunction, writ, or preliminary restraining order of a court of competent jurisdiction directing that the transactions provided for herein shall not be consummated.
(b) No action, suit, proceeding or investigation by or before any court, administrative agency or other governmental authority shall have been instituted (i) to restrain, prohibit or invalidate the transactions contemplated by this Agreement or the Indemnification Agreement or (ii) which seeks material or substantial damages by reason of completion of such transaction.
(c) The applicable waiting periods under the HSR Act shall have expired or been terminated.
6.2. Conditions to the Obligations of the Seller, MTI and the Parent to Effect the Transactions Contemplated Hereby. The obligation obligations of the Investor Seller, MTI and the Parent to complete effect the Stock Purchase transactions contemplated hereby shall be conditioned on further subject to the satisfaction fulfillment at or waiver by prior to the Investor Closing Date of the following conditions, any of which may be waived by the Seller, MTI and the Parent:
a. (i) The Investor Buyer shall have received an opinion, dated performed and complied in all material respects with the agreements contained in this Agreement required to be performed and complied with by it at or prior to the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to ; and (ii) the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained Buyer set forth in this Agreement shall be true and correct on and as of the date hereof and on of this Agreement and as of the Closing Date as if though made on at and as of the Closing Date (except for any such representations or warranties made as otherwise contemplated by this Agreement), except to the extent that all failures of the date hereof or as representations and warranties of another date, which shall the Buyer set forth in this Agreement to be true and correct as of such date)correct, and the Investor taken together, would not have a Buyer Material Adverse Effect.
(b) The Seller shall have received a certificate to the effect of the chief executive officer and chief financial Section 6.2(a) signed by an authorized officer of the Company, dated as Buyer.
6.3. Conditions to the Obligations of the Closing Date, substantially in Buyer to Effect the form set forth in Schedule 3.1(b) Transactions Contemplated Hereby. The obligations of the Buyer to this Agreement, certifying effect the transactions contemplated hereby shall be further subject to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed the fulfillment at or prior to the ClosingClosing Date of the following conditions (provided that, with respect to (d) below, Buyer has negotiated in good faith), any of which may be waived by the Buyer:
(i) The Seller and the Investor MTI shall have received a certificate of a senior officer of performed and complied in all material respects with the Company, dated as of agreements contained in this Agreement required to be performed and complied with by them at or prior to the Closing Date, certifying to that fact.
d. On ; and (ii) the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained Seller, the Parent and MTI set forth in this Agreement shall be true and correct on and as of the date hereof and on of this Agreement and as of the Closing Date as if though made on at and as of the Closing Date (except for any such representations or warranties made as otherwise contemplated by this Agreement), except to the extent that all failures of the date hereof or as representations and warranties of another datethe Seller, which shall the Parent and MTI set forth in this Agreement to be true and correct as of such date)would not have a Business Material Adverse Effect.
b. (b) Since the date of the execution of this Agreement, no event has occurred that will cause a Business Material Adverse Effect.
(c) The Investor Buyer shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior received a certificate to the Closing.
c. On the Closing Date, the Investors shall have duly executed effect of clauses 6.3(a) and delivered to the Company 6.3(b) signed by an authorized officer of each of the Registration Rights Agreement Seller and the Investor AgreementMTI.
3.3. The obligation of the parties (d) Parent, or Parent's nominee, shall have agreed to complete the Stock Purchase enter into an interim, short-term, services agreement ("Services Agreement") with Buyer pursuant to which Parent or Parent's nominee shall also be conditioned perform certain administrative services for Buyer on the satisfaction or waiver by both the Company reasonable terms and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Dow Jones & Co Inc), Purchase and Sale Agreement (Dow Jones & Co Inc), Purchase and Sale Agreement (Dow Jones & Co Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and herein (unless as of the a specific date hereof and on and as of the Closing Date as if made on and as of the Closing Date therein);
(except for any such representations or warranties made as of the date hereof or as of another dateii) all obligations, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) when made and on the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (except for those which by their terms specifically refer to an earlier date, in this Agreement which case such representations and warranties shall have been true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct in all respects) as of such earlier date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the over-the-counter market on the NYSE MKT (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing); and
(vi) the delivery by the Company each of a certificate dated as of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation Closing Date signed on behalf of the parties to complete the Stock Purchase shall also be conditioned on Company confirming the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act conditions contained in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities paragraphs (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(ci), (dii), (iv) and (ev) of this Section 2.3(b), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (United States Antimony Corp), Securities Purchase Agreement (United States Antimony Corp), Securities Purchase Agreement (United States Antimony Corp)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) accuracy in all material respects on the Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein in which case they shall be conditioned on the satisfaction or waiver accurate as of such date);
(ii) all obligations, covenants and agreements of the following conditions:Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
3.1. The obligation (iii) the delivery by the Purchaser of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form items set forth in Schedule 3.1(aSection 2.2(b) to of this Agreement.
b. (b) The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained in this Agreement shall be true and correct on and herein (unless as of a specific date therein);
(ii) all obligations, covenants and agreements of the date hereof and on and as of Company required to be performed at or prior to the Closing Date as if made on and as shall have been performed;
(iii) the delivery by the Company of the Closing Date items set forth in Section 2.2(a) of this Agreement;
(except for any such representations or warranties made as iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) the Company shall have delivered a Certificate, executed on behalf of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the CompanyCompany by its Secretary, dated as of the Closing Date, substantially in certifying the form set forth in Schedule 3.1(b) to resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this AgreementAgreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to that fact.the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company;
c. The (vi) the Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closingdelivered a Certificate, and the Investor shall have received a certificate of a senior officer executed on behalf of the CompanyCompany by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to that fact.the fulfillment of the conditions specified in this Section 2.3(b); and
d. On (vii) from the date hereof to the Closing Date, trading in the Company Common Stock shall not have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver been suspended by the Company of Commission or the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for Company’s principal Trading Market and, at any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or time prior to the Closing.
c. On the Closing Date, the Investors trading in securities generally as reported by Bloomberg L.P. shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termthe Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (ADVANCED MEDICAL ISOTOPE Corp), Securities Purchase Agreement (ADVANCED MEDICAL ISOTOPE Corp), Securities Purchase Agreement (Propanc Health Group Corp)
Closing Conditions. The obligation Effectiveness of the parties this Agreement is subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditionsconditions precedent:
3.1. (a) The obligation Administrative Agent’s receipt of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver following:
(i) this Agreement, duly executed and delivered by the Investor Borrower and each of the following conditions:other parties hereto;
a. The Investor shall have received an opinion(ii) the Guarantee and Security Agreement, dated duly executed and delivered by the Borrowers as of the Closing Date, from Wachtelltogether with duly prepared financing statements in form for filing under the applicable UCC in the jurisdiction of formation of each Borrower;
(iii) certified copies of (x) the constitutive documents of each Borrower and (y) resolutions or other authorizing documentation of each Obligor and the General Partner evidencing the taking of all necessary action authorizing and approving the execution, Lipton, delivery and performance by each Borrower of the Loan Documents to which it is a party;
(iv) a certificate of an officer of each Borrower certifying the names and true signatures of the officers authorized to sign the Loan Documents and any other documents to be delivered hereunder by each Borrower;
(v) the legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and/or another nationally recognized law firm, as counsel to the CompanyBorrowers, as in a form reasonably acceptable to the validity Administrative Agent;
(vi) a certificate of an officer of KCMH, dated the Securities being sold in Closing Date, certifying that (a) the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement shall be Section 5.01 and in the other Loan Documents are true and correct in all material respects on and as of the such date hereof and on and as of the Closing Date as if though made on and as of such date and (b) no event has occurred and is continuing on and as of such date which constitutes a Default or an Event of Default;
(vii) a certificate attesting to the Solvency of KCMH and its Subsidiaries, taken as a whole, after giving effect to the effectiveness of this Agreement and any Loans made or Letters of Credit issued or outstanding on the Closing Date; and
(viii) all documentation and other information reasonably requested in writing at least five Business Days prior to the Closing Date in order to allow the Administrative Agent to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(except for any such representations b) KCMH shall have paid all fees and expenses (including fees, charges and disbursements of counsel invoiced prior to the Closing Date) required to be paid on or warranties made as prior to the Closing Date to the Administrative Agent or the Lead Arranger in connection with this Agreement. The Administrative Agent will promptly notify the Lenders of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as occurrence of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: 364 Day Revolving Credit Agreement (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. L.P.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed;
(iii) the delivery by each Purchaser of the Companyitems set forth in Section 2.2(b) of this Agreement;
(iv) the execution by the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, dated in his individual capacity, of the Option Agreement;
(v) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents;
(vi) The Company shall have obtained in a timely fashion any and all consents, Material Permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the Pre-Funded Warrants, including the Pre-Funded Warrant Shares (including all Required Approvals), all of which shall be and remain so long as necessary in full force and effect; and
(vii) HoD or its wholly-owned subsidiary Dogecoin Ventures, Inc. shall have delivered the HoD Contribution as of the Closing Date, certifying to that fact.
d. On (b) The respective obligations of the Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation all respects when made of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and accurate as of such date) and the date hereof and accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on and as of the Closing Date as if made on of the representations and warranties of the Company contained herein (unless as of the Closing Date (except for any such representations or warranties made as of the a specific date hereof or as of another date, therein in which case they shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable Securities at the Closing Closing;
(vi) no statute, rule, regulation, executive order, decree, ruling or upon conversion of the Preferred Stock injunction shall have been duly authorized for listingenacted, subject to official notice entered, promulgated or endorsed by any court or governmental authority of issuance, on competent jurisdiction that prohibits the New York Stock Exchange.
c. The Board consummation of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreementthe Transaction Documents; and
(vii) the Company shall have obtained in a timely fashion any and all consents, without permits, approvals, registrations and waivers necessary for consummation of the imposition purchase and sale of any termthe Pre-Funded Warrants, condition or consequence including the acceptance Pre-Funded Warrant Shares (including all Required Approvals), all of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be and remain so long as necessary in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeeffect.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Brag House Holdings, Inc.), Securities Purchase Agreement (CleanCore Solutions, Inc.), Securities Purchase Agreement (CleanCore Solutions, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company and the Selling Stockholder hereunder in connection with each Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects when made and on the satisfaction or waiver such Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor such Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2(c) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with each Closing are subject to the following conditions being met on or prior to the Closing Date, certifying to that fact.:
d. On (i) the accuracy in all material respects when made and on such Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company and the Selling Stockholder contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company and the Selling Stockholder required to be performed at or prior to the Closing.
c. On the such Closing Date, the Investors Date shall have duly executed and delivered to been performed;
(iii) the delivery by the Company each of the Registration Rights Agreement and items set forth in Section 2(a) of this Agreement;
(iv) the Investor Agreement.
3.3. The obligation delivery by the Selling Stockholder of the parties to complete items set forth in Section 2(b) of this Agreement;
(v) the Stock Purchase consummation of the Merger (as defined in the Private Placement Memorandum);
(vi) the entry by the Company into the Secured Credit Facility (as defined in the Private Placement Memorandum) in an aggregate amount of no less than $20,000,000; and
(v) there shall also be conditioned have been no (i) a material adverse effect on the satisfaction legality, validity or waiver by both enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing Subsidiaries, taken as a whole, or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, (iii) a material adverse effect on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted Company’s ability to perform in any material respect on a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or timely basis its obligations under any Transaction Document (any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(ci), (dii) or (iii), and (e), the a “Required ApprovalsMaterial Adverse Effect”) shall have been obtained or made and shall be in full force and effect and all waiting periods under since the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreedate hereof.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Jerash Holdings (US), Inc.), Securities Purchase Agreement (Jerash Holdings (US), Inc.), Securities Purchase Agreement (Jerash Holdings (US), Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate been performed;
(iii) approval of a senior officer listing application from the New York Stock Exchange MKT approving the issuance of the Company, dated as Shares and Warrants in accordance with the terms of this Agreement; and
(iv) the delivery by each Purchaser of the Closing Date, certifying to that factitems set forth in Section 2.2(b) of this Agreement.
d. On (b) The respective obligations of the Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and herein (unless as of the a specific date hereof therein);
(ii) all obligations, covenants and on and as agreements of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) approval of a listing application from the New York Stock Exchange MKT approving the issuance of the Shares and Warrants in accordance with the terms of this Agreement; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (22nd Century Group, Inc.), Securities Purchase Agreement (22nd Century Group, Inc.), Securities Purchase Agreement (22nd Century Group, Inc.)
Closing Conditions. (i) The obligation obligations of the parties Investor, on the one hand, and the Company, on the other hand, to complete consummate the purchase and sale of the Shares provided for in this Agreement are each subject to the satisfaction or, to the extent permitted by Law and this Agreement, the waiver by the Company or the Investor, as applicable, of the following conditions to the Closing under this Agreement:
(A) All Governmental Consents required to have been obtained at or prior to the Closing Date in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained and shall be in full force and effect.
(B) The Merger Transactions shall have been consummated in accordance with the Merger Agreement, including the approval of the Merger Agreement by Section 2 hereof the stockholders of each of the Company and CFB;
(C) If required under applicable Law or the rules and regulations of the Nasdaq Stock Market, the approval by stockholders of the Company of resolutions providing for the Company’s issuance of the maximum number of shares of Common Stock to be issued under this Agreement and in the Concurrent Other Transactions in accordance with this Agreement, the definitive documentation relating to the Concurrent Other Transactions, and applicable Law and the rules and regulations of the Nasdaq Stock Market (such approval being referred to herein as the “Stockholder Approval”) shall have been obtained;
(D) Approval by the stockholders of the Company to increase in the authorized number of shares of Voting Common Stock (which will become Class A Common Stock upon completion of the Merger) from 50,000,000 shares to 75,000,000 shares, to be effected by the filing of an amended and restated certificate of incorporation of the Company (the “Stock PurchaseAuthorized Shares Increase Approval”), shall have been obtained.
(ii) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation of the Investor to complete consummate the Stock Purchase shall be conditioned on purchase of Shares provided for in this Agreement is also subject to the satisfaction or waiver by the Investor of the following conditionsconditions to the Closing:
a. (A) (i) The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement Specified Representations shall be true and correct in all respects on and as of the date hereof of this Agreement and on and as of the Closing Date as if though made on and as of the Closing Date and (except for ii) the other representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects on and as of the date of this Agreement and on and as of the Closing Date as though made on and as of the Closing Date, except, in the case of this clause (ii) only, to the extent that the failure to be true and correct (without regard to any such materiality or Material Adverse Effect qualifications contained therein), would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and except, in the case of clauses (i) and (ii), that representations or and warranties made as of the a specified date hereof or as of another date, which shall be true and correct as of such date);
(B) The Company shall have performed and complied with, in all material respects, all agreements, covenants and conditions required by this Agreement to be performed by it on or prior to the Closing Date;
(C) The Investor shall have received a certificate of the chief executive officer and chief financial officer of the Companycertificate, dated as of the Closing Date, substantially in signed on behalf of the form Company by a senior executive officer certifying to the effect that the conditions set forth in Schedule 3.1(bSection 1.2(c)(ii)(A), Section 1.2(c)(ii)(B) to this Agreement, certifying to that fact.
c. The Company shall and Section 1.2(c)(ii)(D) have performed in all material respects all of its covenants been satisfied on and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date;
(D) Since the date of this Agreement, certifying to that fact.
d. On the Closing Date, the Company no Material Adverse Effect shall have duly executed occurred and delivered no change or other event shall have occurred that would reasonably be expected to have, individually or in the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto aggregate, a Material Adverse Effect;
(the “Investor Agreement”iii) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete consummate the Stock Purchase shall be conditioned on sale of the Shares provided for in this Agreement is also subject to the satisfaction or written waiver by the Company of the following conditionsconditions to the Closing:
a. (A) The representations and warranties of the Investor contained set forth in this Agreement shall be true and correct in all respects on and as of the date hereof of this Agreement and on and as of the Closing Date as if though made on and as of the Closing Date Date, except to the extent that the failure to be true and correct (without regard to any materiality qualifications contained therein) would not materially adversely affect the ability of the Investor to perform its obligations hereunder and except for any such that (1) representations or and warranties made as of the a specified date hereof or as of another date, which shall be true and correct as of such date).date and (2) the representations and warranties of the Investor set forth in Sections 2.3(d) and 2.3(f) shall be true and correct in all respects;
b. (B) The Investor shall have performed and complied with, in all material respects respects, all of its agreements, covenants and obligations in conditions required by this Agreement that are to be performed at by it on or prior to the Closing.Closing Date; and
c. On (C) The Company shall have received a certificate, dated as of the Closing Date, signed on behalf of the Investors shall have Investor by a duly executed and delivered authorized person certifying to the Company each of effect that the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those conditions set forth in 3.3(c), (d), Section 1.2(c)(iii)(A) and (e), the “Required Approvals”Section 1.2(c)(iii)(B) shall have been obtained or made satisfied on and shall be in full force and effect and all waiting periods under as of the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeClosing Date.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Broadway Financial Corp \De\), Stock Purchase Agreement (Broadway Financial Corp \De\), Stock Purchase Agreement (Broadway Financial Corp \De\)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects (or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof or as of another dateare qualified by materiality, which shall be true and correct in all respects) as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof are qualified by materiality or as of another dateMaterial Adverse Effect, which shall be true and correct in all respects) as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) all conditions to closing of the Merger shall have been satisfied and the Merger shall be ready to close;
(v) there shall have been no Material Adverse Effect with respect to the Company; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Trailblazer Holdings, Inc.), Securities Purchase Agreement (Trailblazer Holdings, Inc.), Securities Purchase Agreement (Cyabra Strategy Ltd.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete effect the transactions contemplated by Section 2 hereof Closing are subject to the following conditions being met:
(i) the “Stock Purchase”accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchaser contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchaser required to be performed at or prior to the Closing, Closing Date shall have been performed;
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement;
(iv) the issue and sale of the Convertible Debenture being exempt from the requirement to file a prospectus or registration statement and the Investor shall have received a certificate of a senior officer requirement to deliver an offering memorandum under Applicable Laws relating to the offer and sale of the CompanyConvertible Debenture, dated or the Company having received such orders, consents or approvals as of may be required to permit such sale without the requirement to file a prospectus or registration statement or deliver an offering memorandum; and
(v) all necessary regulatory approvals being obtained prior to the Closing Date, certifying to that fact.
d. On (b) The obligations of the Purchaser hereunder to effect the Closing, unless waived by the Purchaser, are subject to the following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) no Event of Default (as defined in the Transaction Documents) shall have occurred under the Transaction Documents;
(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) all necessary regulatory approvals being obtained prior to the Closing Date;
(vi) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the TSX Venture Exchange, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities, nor shall the Company have issued any variable rate securities, issued any equity or debt securities at a “clearance letter” with respect to price lower than the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition purchase price of the Securities (but not for the Convertible Debenture hereunder or conversion price thereof, or have issued any securities with anti dilution features, nor shall there have occurred any material outbreak or escalation of the Preferred Stock into Common Stock) (collectivelyhostilities or other national or international calamity of such magnitude in its effect on, with those set forth in 3.3(c)or any material adverse change in, (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termthe Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Western Magnesium Corp.), Securities Purchase Agreement (Western Magnesium Corp.), Securities Purchase Agreement (Western Magnesium Corp.)
Closing Conditions. The (a) As a condition to the Purchaser’s obligation to close, at the Closing, the Company shall have satisfied each of the parties conditions set forth below or shall deliver or cause to complete be delivered to Purchaser the transactions contemplated items set forth below, as appropriate:
(i) this Agreement duly executed by Section 2 hereof the Company;
(the “Stock Purchase”ii) shall be conditioned on the satisfaction or waiver within five (5) business days of the following conditions:
3.1. The obligation of Closing, a certificate evidencing the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinionShares, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold registered in the Stock Purchase, substantially in name of Purchaser (unless such shares have been previously issued to Purchaser through the form set forth in Schedule 3.1(abook-entry facilities of The Depository Trust Company);
(iii) to this Agreement.
b. The the representations and warranties of made by the Company contained in this Agreement herein shall be true and correct in all material respects on the date made and as on the date of the Closing;
(iv) all covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the date hereof and on and as of the Closing Date as if made on and as shall have been performed or complied with in all material respects;
(v) no statute, regulation, executive order, decree, ruling or injunction shall have been enacted, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the consummation of the Closing Date transaction contemplated by this Agreement; and
(except vi) the Company shall have filed an application with The Nasdaq Stock Market for any such the listing of the Shares.
(b) As a condition to the Company’s obligation to close, at the Closing, Purchaser shall have satisfied each of the conditions set forth below or shall deliver or cause to be delivered to the Company the items set forth below, as appropriate:
(i) this Agreement duly executed by Purchaser;
(ii) the Subscription Amount by wire transfer to the account of the Company as set forth on the signature pages hereto;
(iii) the representations or and warranties made as of the date hereof or as of another date, which by Purchaser herein shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all on the date made and on the date of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor ;
(iv) Purchaser shall have received a certificate of a senior officer of the Companyperformed, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed satisfied and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed complied in all material respects with all of its covenants covenants, agreements and obligations in conditions required by this Agreement that are to be performed performed, satisfied or complied with by Purchaser at or prior to before the Closing.; and
c. On the Closing Date(v) no statute, the Investors regulation, executive order, decree, ruling or injunction shall have duly executed and delivered been enacted, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the Company each consummation of the Registration Rights Agreement and the Investor transaction contemplated by this Agreement.
3.3. The obligation (c) As of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor date of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Closing, there shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5no Material Adverse Effect (as defined below) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without Company since the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detrimentdate hereof.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Advaxis, Inc.), Securities Purchase Agreement (Advaxis, Inc.)
Closing Conditions. a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein;
(except for any such representations or warranties made as of the date hereof or as of another dateii) all obligations, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
b) The respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true herein;
(ii) all obligations, covenants and correct on and as agreements of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listing, subject to official notice performed;
(iii) such Purchaser shall be satisfied with the results of issuance, on the New York Stock Exchange.
c. The Board of Directors its due diligence investigation of the Federal Deposit Insurance Corporation Company;
(iv) such Purchaser shall be satisfied with the Company's current and projected uses of cash;
(v) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(vi) all obligations of the Company shall be subordinated in right of payment to the Notes (other than those in favor of the Senior Lender (as herein defined)) which shall not exceed $5.0 million;
(vii) such Purchaser being satisfied with the terms of the acquisition of the ATM portfolio and any equity investments in the Company;
(viii) completion of the acquisition of the ATM portfolio;
(ix) there shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable been no Material Adverse Effect with respect to the Company and its Subsidiaries since the Investor.date hereof; and
d. The Board of Governors of the Federal Reserve System shall (x) No banking moratorium have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial markets which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Notes at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Global Axcess Corp), Securities Purchase Agreement (Global Axcess Corp)
Closing Conditions. (1) The obligation respective obligations of the parties Investors, on the one hand, and the Company, on the other hand, to complete consummate the Closing are each subject to the satisfaction or written waiver by the Company and the Investors of the following conditions prior to the Closing:
(A) No provision of any Law and no judgment, injunction, order or decree shall prohibit the Closing or shall prohibit or restrict the Investors or any of their respective Affiliates from owning or voting any Common Shares;
(B) All Governmental Consents required to have been obtained at or prior to the TARP Closing Date in connection with the execution, delivery or performance of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained and shall be in full force and effect on the Investor Closing Date;
(C) The Company shall have complied with the requirements of NASDAQ Marketplace Rule 5635(f) to avail itself of NASDAQ’s financial viability exception; and
(D) The Company and the Investors, subject to delivering an “access letter” in a form acceptable to PricewaterhouseCoopers and each Investor, shall have received: (i) a limited scope tax opinion (the “PwC Opinion”) from PricewaterhouseCoopers, satisfactory in form and substance to each Investor and that may, by its terms, be relied upon by the Investors, documenting the effect of the transactions contemplated by the Transaction Documents with respect to the absence of an “ownership change” for purposes of Section 2 hereof 382 of the Code, (ii) the “Stock Purchase”numerical analysis identifying the testing dates evaluated in the PwC Opinion during the applicable analysis period, the ownership interest held by each shareholder and the ownership change percentage associated with each testing date, (iii) shall a comprehensive list of all assumptions and Company representations relied upon by PricewaterhouseCoopers in preparing the PwC Opinion and (iv) a copy of all source documentation relied upon by PricewaterhouseCoopers in preparing the PwC Opinion.
(2) The obligation of each Investor to purchase the Common Shares to be conditioned on purchased by it at the Closing is also subject to the satisfaction or written waiver by such Investor, as applicable, of the following conditionsconditions prior to the Closing:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a(A) to this Agreement.
b. The representations and warranties of the Company contained set forth in this Agreement shall be true and correct in all respects on and as of the date hereof of this Agreement, and on and as of the TARP Closing Date as if though made on and as of the TARP Closing Date, and on and as of the Investor Closing Date as though made on and as of the Investor Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except for any such that (1) representations or and warranties made as of the a specified date hereof or as of another date, which shall be true and correct as of such datedate and (2) the representations and warranties set forth in Section 2.2(a), Section 2.2(b), Section 2.2(c), Section 2.2(d)(2)(A)(i), Section 2.2(e), Section 2.2(o), Section 2.2(q)(4), Section 2.2(ee), Section 2.2(hh), Section 2.2(ii), Section 2.2(ll), and Section 2.2(mm) shall be true and correct in all respects);
(B) The Company shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by it on or prior to the Investor Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects);
(C) Each Investor shall have received a certificate, dated as of the Investor Closing Date, signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.2(c)(2)(A) and Section 1.2(c)(2)(B) have been satisfied on and as of the Investor Closing Date;
(D) Each Investor who, together with its Affiliates and persons who share a common investment advisor with such Investor, has committed to acquire a beneficial ownership of 5% or more of the outstanding shares of Common Stock (collectively, the “9.9% Investors” and each a “9.9% Investor”) has received, in each 9.9% Investor’s sole discretion, satisfactory feedback from the Federal Reserve that such 9.9% Investor will not have “control” of the Company or the Bank for purposes of the BHCA and that no notice is required under the CIBC Act (each, a “Non-Control Determination”);
(E) There shall not be any action taken or pending, or any Law enacted, entered, enforced or applicable to the Company or the Company Subsidiaries, any Investor or its Affiliates or the transactions contemplated by the Transaction Documents, by any Governmental Entity, whether in connection with the Non-Control Determinations specified in Section 1.2(c)(2)(D) or otherwise, which imposes any restriction or condition that such Investor determines, in its reasonable good faith judgment, (i) is materially and unreasonably burdensome, or (ii) would reduce the benefits of the transactions contemplated hereby to such Investor to such a degree that such Investor would not have entered into the Transaction Documents had such condition or restriction been known to it on the date of this Agreement (any such condition or restriction, a “Burdensome Condition”); for the avoidance of doubt, any requirement to disclose the identities or financial condition of limited partners, shareholders or non-managing members of such Investor or its Affiliates or its investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Investor in its sole discretion;
(F) Since the date of this Agreement, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect;
(G) Sufficient funds shall be in escrow for the benefit of the Company for the Primary Share Purchases, on terms and conditions fully disclosed to, and acceptable to, each Investor, in each case at a price per share equal to the Purchase Price (with the aggregate amount in escrow constituting the “Primary Investor Proceeds”);
(H) The purchase of Common Shares by such Investor shall not result in such Investor, together with any other person whose Company securities would be aggregated with such Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote more than 9.9% of the outstanding shares of Common Stock as of the Closing Date;
(I) All of the TARP Preferred Stock and the TARP Warrant shall have been exchanged for the Converted Shares in accordance with the Exchange Agreement;
(J) The Secondary Share Purchases shall have been completed pursuant to the TARP Securities Purchase Agreements, on terms and conditions fully disclosed to, and acceptable to, each Investor, in each case at a price per share equal to the Purchase Price, for an aggregate purchase price equal to the number of Converted Shares times the Purchase Price (the “Secondary Investor Proceeds”);
(K) The Primary Investor Proceeds and the Secondary Investor Proceeds shall, in the aggregate, be at least $90,000,000 and no more than $92,000,000;
(L) The Local Investors shall have deposited sufficient funds into escrow for the benefit of the Company for the purchase of the shares of Common Stock allocated to the Local Investors pursuant to the Subscription Agreements, on terms and conditions fully disclosed to, and acceptable to, each Investor, in each case at a price per share equal to the Purchase Price;
(M) At any time after the date of this Agreement, the Company shall not have agreed to enter into or entered into (i) any agreement or transaction in order to raise capital other than in connection with the transactions contemplated by the Transaction Documents, or (ii) any transaction that resulted in, or would result in if consummated, a Change in Control of the Company;
(N) Each Investor shall have received a certificate signed on behalf of the chief Company by a senior executive officer and chief financial officer of the Company, dated as of the Investor Closing Date, certifying (i) the resolutions adopted by the Board of Directors or a duly authorized committee thereof approving the transactions contemplated by the Transaction Documents and the issuance of the Common Shares in the Private Placement, (ii) the current versions of the Articles of Incorporation, as amended, and By-Laws, as amended, of the Company, (iii) as to the signatures and authority of the individuals signing this Agreement and related documents on behalf of the Company, and (iv) such other matters as may be reasonably requested by the Investors;
(O) At the Closing, the Company shall have caused each Investor to receive, substantially in the form set forth in Schedule 3.1(b) to this Agreementas Exhibit B hereto, certifying to that fact.
c. The Company shall have performed in all material respects all an opinion of its covenants and obligations in this Agreement that are to be performed at or prior ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the ClosingCompany;
(P) The Common Stock (i) shall be designated for listing and quotation on the Nasdaq Stock Market and (ii) shall not have been suspended, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Investor Closing Date, certifying to that fact.by the SEC or the Nasdaq Stock Market from trading on the Nasdaq Stock Market; and
d. On (Q) Each of the Closing Date, directors and executive officers of the Company shall have duly executed and delivered to be participating in the Investor an Investor Agreement in substantially the form set forth Private Placement, either as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”)Primary Investors or Secondary Investors.
3.2. (3) The obligation obligations of the Company hereunder to complete issue and sell the Stock Purchase shall be conditioned on Common Shares to each Investor at the Closing is subject to the satisfaction or written waiver by the Company of the following conditionsconditions prior to the Closing:
a. (A) The several and not joint representations and warranties of the each Investor contained set forth in this Agreement shall be true and correct in all respects on and as of the date hereof of this Agreement and on and as of the Investor Closing Date as if though made severally and not jointly on and as of the Investor Closing Date (except for any such representations or warranties made as of where the date hereof or as of another date, which shall failure to be true and correct as (without regard to any materiality qualifications contained therein) would materially adversely affect the ability of such date).Investor to perform its obligations hereunder;
b. The (B) Each Investor shall have performed and complied with in all material respects all of its agreements, covenants and obligations in this Agreement that are conditions required by the Transaction Documents to be performed at by it on or prior to the Closing.
c. On the Investor Closing DateDate (except that with respect to agreements, the Investors covenants and conditions that are qualified by materiality, such Investor shall have duly executed performed and delivered to the Company each of the Registration Rights Agreement complied with such agreements, covenants and the Investor Agreement.conditions, as so qualified, in all respects); and
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. (C) The Company shall have duly filed with the Secretary of State received a certificate, dated as of the State Investor Closing Date, from each Investor signed on behalf of Delaware the Preferred Stock CoD.
b. The shares such Investor by a senior executive officer or similar official of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable such Investor certifying to the Company and effect that the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those conditions set forth in 3.3(c), (d), Section 1.2(c)(3)(A) and (e), the “Required Approvals”Section 1.2(c)(3)(B) shall have been obtained or made satisfied on and shall be in full force and effect and all waiting periods under as of the Required Approvals shall have expired or been terminatedInvestor Closing Date, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in solely as to such a judgment, injunction, order or decreeInvestor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Atlantic Capital Bancshares, Inc.), Stock Purchase Agreement (First Security Group Inc/Tn)
Closing Conditions. The obligation of the parties (a) Transferor’s obligations to complete consummate the transactions contemplated hereby and to deliver the Transferor Closing Documents at the Closing shall be conditioned upon the satisfaction of the following conditions (any of which may be waived by Section 2 hereof Transferor, in whole or in part) (the “Stock PurchaseTransferor Closing Conditions”):
(i) The REIT shall advance the Additional Loan to Transferor in immediately available funds;
(ii) Transferee and the REIT shall have tendered delivery, and shall have caused each of the persons referred to in Section 3(d), as applicable, to tender delivery, of all of the Transferee Closing Documents, including in each case a tender which may be conditioned on the satisfaction of the Transferee Closing Conditions (as defined below); and
(iii) Each of the representations and warranties of Transferee set forth in Section 2(b) of this Agreement must be accurate in all materials respects as of the Closing Date.
(b) Transferee’s obligations to consummate the transactions contemplated hereby and to deliver (or waiver cause the delivery of) the Transferee Closing Documents at the Closing, and the REIT’s obligation to advance the Additional Loan at the Closing, shall be conditioned upon the satisfaction of the following conditions:conditions (any of which may be waived by Transferee, in whole or in part) (the “Transferee Closing Conditions”):
3.1. The obligation of the Investor to complete the Stock Purchase (i) Transferor shall have tendered delivery (including a tender which may be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Transferor Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity Conditions) of all of the Securities being sold in Transferor Closing Documents; and
(ii) Each of the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained Transferor set forth in Section 2(a) of this Agreement shall must be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated accurate in all materials respects as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer (c) Transferee’s receipt of the Company, dated as of Audited Statements is not a condition to Transferee’s obligation to consummate the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed transactions contemplated hereby at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Contribution and Conveyance Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution and Conveyance Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing is subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein, in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing shall have been performed;
(iii) no proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, and the Investor shall have received a certificate of a senior officer been instituted before any court or governmental body, or agency and shall be pending;
(iv) the sale of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, Securities by the Company shall have duly executed not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and delivered authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation any of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock transactions contemplated hereby shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect effect; and
(v) the delivery by each Purchaser of the items set forth in Section 2.2(b), as applicable.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein, in which case they shall be accurate in all waiting periods under material respects as of such date);
(ii) all obligations, covenants and agreements of the Required Approvals Company required to be performed at or prior to the Closing shall have expired been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a);
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing, trading in securities generally as reported by Bloomberg L.P. shall not have been terminatedsuspended or limited, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termeach Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Biomoda Inc/Nm), Securities Purchase Agreement (VirnetX Holding Corp)
Closing Conditions. The obligation (a) At the Closing, as a condition to Buyer’s obligations hereunder, Bontems shall deliver or cause to be delivered to:
(i) Buyer, a certificate or certificates for the number of shares of Common Stock set forth opposite the name of Buyer on the signature page hereof, duly endorsed in blank with a medallion signature guaranty;
(ii) subject to Section 2.3, Buyer, a certificate for 4,000,000 shares of Preferred Stock, duly endorsed in blank with a medallion signature guaranty;
(iii) Buyer, this Agreement duly executed by the Company;
(iv) Buyer, evidence satisfactory that the principals of the parties to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver Company have acquired all of the following conditionsassets and liabilities of the Company pursuant to the Asset Purchase Agreement;
(v) Buyer, evidence satisfactory that the Registration Statement has been withdrawn pursuant to Rule 477 under the Securities Act.
(b) at the Closing, as a condition to Bontems’ obligations hereunder, Buyer shall deliver or cause to be delivered to Bontems the following:
3.1. The obligation of (i) this Agreement duly executed by Buyer; and
(ii) Buyer’s payment for the Investor to complete Shares and Preferred Stock being purchased from the Stock Purchase shall be conditioned on escrow account by wire transfer;
(c) at the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firmClosing, as counsel a condition to the Companyeach party’s obligations hereunder, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The all representations and warranties of each of the Company contained in this Agreement parties herein shall be remain true and correct on and as of the date hereof and on and in all material respects as of the Closing Date as if made on and as of the Closing Date Date.
(except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated d) as of the Closing Date, substantially in as a condition to the form set forth in Schedule 3.1(bBuyer’s obligations hereunder, there shall have been no Material Adverse Effect (other than pursuant to the Asset Purchase Agreement) with respect to this Agreement, certifying to that factthe Company since the date hereof.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are (e) from the date hereof to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered as a condition to the Investor an Investor Agreement Buyer’s obligations, (i) trading in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Common Stock Purchase shall be conditioned on the satisfaction or waiver not have been suspended by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date Commission (except for any such representations or warranties made as suspension of trading of limited duration agreed to by the date hereof or as of another dateCompany, which suspension shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or terminated prior to the Closing.
c. On the Closing Date); (ii) trading in securities generally shall not have been suspended or limited, the Investors or minimum prices shall not have duly executed been established on securities whose trades are reported by such service, or on any Trading Market; and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock (iii) no banking moratorium shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in declared either by the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial DetrimentNew York State authorities.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Universal Fog Inc), Securities Purchase Agreement (Universal Fog Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditionsconditions being met:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement Purchasers shall be true and correct on 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 hereof and on when made and as of the Closing Date as if though made on and as of the Closing Date at that time (except for any such representations or and warranties made that speak as of the date hereof or as of another a specific date, which shall be remain true and correct as of such specific date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchasers required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by the Purchasers of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditionsconditions being met:
a. The (i) the representations and warranties of the Investor contained in this Agreement Company and its Subsidiaries shall be true and correct on 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 hereof and on when made and as of the Closing Date as if though made on and as of the Closing Date at that time (except for any such representations or and warranties made that speak as of the date hereof or as of another a specific date, which shall be remain true and correct as of such specific date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the Common Stock (I) shall be listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by the Investors SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have duly executed and delivered to the Company each been threatened, as of the Registration Rights Agreement and Closing Date, either (A) in writing by the Investor Agreement.
3.3. The obligation SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the parties to complete Principal Market; and
(v) the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Secretary of State sale of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company Shares and the InvestorWarrants.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Elixir Gaming Technologies, Inc.), Securities Purchase Agreement (Vendingdata Corp)
Closing Conditions. The obligation duties of the parties Seller and the Purchaser to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) consummate each Transaction shall be conditioned on subject to the satisfaction or waiver of various conditions as set forth below:
(i) The duty of each party to consummate such Transaction shall be subject to the satisfaction of the following conditions:
3.1. (A) the Seller shall have acquired the Servicing Rights with respect to the related Primary Portfolio;
(B) the representations and warranties made by the other party in this Agreement and each other Transaction document to which such party is a party to be made on or prior to the Transaction Settlement Date shall be true and correct in all material respects; and
(C) the other party shall have performed or caused the performance of each covenant or obligation required to be performed by such party on or before the Transaction Settlement Date (including the delivery of documents required to be delivered by such other party under subsection (c));
(ii) The obligation duty of the Investor Seller to complete the Stock Purchase consummate such Transaction shall be conditioned further subject to the satisfaction of the additional condition that no change in the Purchaser’s financial condition shall have occurred following the Confirmation Date that would be reasonably likely to materially and adversely affect the Purchaser’s ability to consummate the Transaction on the Transaction Settlement Date;
(iii) The duty of the Purchaser to consummate such Transaction shall be further subject to the satisfaction or waiver by the Investor of the following additional conditions:
a. The Investor shall have received an opinion(A) no change in the Seller’s financial or operating condition, dated the Closing Date, Seller’s good standing with and authority from Wachtell, Lipton, ▇▇▇▇▇▇▇ & ▇▇▇▇Mac, and/or another nationally recognized law firmthe Servicing Rights, as counsel the Primary Portfolio Mortgage Loans or the escrow accounts related to the CompanyPrimary Portfolio Mortgage Loans shall have occurred following the Confirmation Date that, as individually or in the aggregate, would be reasonably likely to materially and adversely one or more of (x) the validity Seller’s ability to consummate such Transaction on the Transaction Settlement Date, (y) the performance of the Securities being sold in Primary Portfolio Excess Spread, or (z) the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties practical or other ability of an owner of the Company contained in this Agreement shall be true and correct on and as of Servicing Rights to realize the date hereof and on and as of benefits thereof;
(B) the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor Seller shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) obtained or caused to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized obtained all consents, approvals or other requirements of third parties required for listing, subject to official notice the consummation of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without including all requisite ▇▇▇▇▇▇▇ Mac approvals;
(D) the imposition of any term, condition Seller shall have been appointed as the servicer or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required subservicer for the Investor’s acquisition of Primary Portfolio Mortgage Loans; and
(E) the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those information set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and data tape delivered to Purchaser on the Transaction Settlement Date shall be true and correct in full force and effect and all waiting periods under material respects as of the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreedate specified.
Appears in 2 contracts
Sources: Master Spread Acquisition and MSR Servicing Agreement, Master Spread Acquisition and MSR Servicing Agreement (Pennymac Financial Services, Inc.)
Closing Conditions. The (a) As a condition to each Purchaser’s obligation of the parties to complete consummate the transactions contemplated by Section 2 hereof (hereby, at the “Stock Purchase”) Closing, the Company shall be conditioned on the satisfaction or waiver have satisfied each of the following conditions:conditions set forth below or shall deliver or cause to be delivered to each Purchaser the items set forth below, as appropriate:
3.1. The obligation (i) this Agreement duly executed by the Company;
(ii) within five (5) business days of the Investor to complete Closing, a certificate evidencing the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinionShares, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold registered in the Stock Purchase, substantially in name of such Purchaser (unless such shares have been previously issued to such Purchaser through the form set forth in Schedule 3.1(abook-entry facilities of The Depository Trust Company);
(iii) to this Agreement.
b. The the representations and warranties of made by the Company contained in this Agreement herein shall be true and correct in all material respects on and as of the date hereof and on the date of the Closing;
(iv) all covenants, agreements and as conditions contained in this Agreement to be performed by the Company on or prior to the date of the Closing Date as if made on and as shall have been performed or complied with in all material respects;
(v) no statute, regulation, executive order, decree, ruling or injunction shall have been enacted, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the consummation of the Closing Date transaction contemplated by this Agreement; and
(except vi) the Company shall have filed an application with The Nasdaq Stock Market for any the listing of the Shares.
(b) As a condition to the Company’s obligation to consummate the transactions contemplated hereby, at the Closing, each Purchaser shall have satisfied each of the conditions set forth below or shall deliver or cause to be delivered to the Company the items set forth below, as appropriate:
(i) this Agreement duly executed by such Purchaser;
(ii) the Subscription Amount by wire transfer of immediately available funds to the account of the Company as set forth on Schedule A hereto;
(iii) the representations or and warranties made as of the date hereof or as of another date, which by such Purchaser herein shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as the date of the Closing Date as if made on and as of the Closing Date Closing;
(except for any iv) such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor Purchaser shall have performed performed, satisfied and complied in all material respects with all of its covenants covenants, agreements and obligations in conditions required by this Agreement that are to be performed performed, satisfied or complied with by such Purchaser at or prior to before the Closing.; and
c. On the Closing Date(v) no statute, the Investors regulation, executive order, decree, ruling or injunction shall have duly executed and delivered been enacted, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the Company each consummation of the Registration Rights Agreement and the Investor transaction contemplated by this Agreement.
3.3. The obligation (c) As of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor date of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Closing, there shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5no Material Adverse Effect (as defined below) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without Company since the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detrimentdate hereof.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Aratana Therapeutics, Inc.), Placement Agency Agreement (Aratana Therapeutics, Inc.)
Closing Conditions. The obligation of the parties 3.1.1 Subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation conditions set forth in Sections 3.1.3, 3.1.4 and 3.1.5, the closing of the Investor Subscription contemplated hereby (the “Closing”) shall occur substantially concurrently with the execution of this Subscription Agreement (the “Closing Date”).
3.1.2 Subject to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form conditions set forth in Schedule 3.1(a) to this Agreement.Sections 3.1.3, 3.1.4 and 3.1.5:
b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. 3.1.2.1 On the Closing Date, Subscriber shall deliver to the Company the Purchase Price for the Note by wire transfer of United States dollars in immediately available funds. Prior to or at the Closing, Subscriber shall deliver to the Company such information as is reasonably requested in order for the Company to issue the Note to Subscriber, including the legal name of the person in whose name the Note is to be issued and a duly completed and executed Internal Revenue Service Form W-9 or an appropriate duly completed and executed Internal Revenue Service Form W-8, as applicable; and
3.1.2.2 the Company shall have duly executed deliver to Subscriber the Note, free and delivered to clear of any liens or other restrictions whatsoever (other than those arising under applicable securities laws or as set forth in a separate written agreement between the Investor an Investor Agreement Company and Subscriber, as applicable), in the name of Subscriber (or its nominee in accordance with its delivery instructions). The Note (and the Shares issuable upon conversion thereof) shall contain a legend in substantially the form set forth as Exhibit B hereto following form: THIS CONVERTIBLE PROMISSORY NOTE (the “Investor AgreementNOTE”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the THE “Registration Rights AgreementSECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Subscription Agreement (Captivision Inc.), Subscription Agreement (Captivision Inc.)
Closing Conditions. The obligation of Purchaser to render performance under this Agreement is subject to the following conditions precedent (and conditions concurrent, with respect to deliveries to be made by the parties at Closing) (“Purchaser’s Conditions”), which conditions may be waived, or the time for satisfaction thereof and the Closing Date extended up to complete the transactions contemplated five (5) days, by Section 2 hereof (the “Stock Purchase”) Purchaser only in a writing executed by Purchaser; provided, however, that any such extension shall be conditioned on the satisfaction or waiver of the following conditionsnot affect Purchaser’s ability to pursue any remedy Purchaser may have with respect to any breach hereunder by ▇▇▇▇▇▇:
3.1. The obligation of (a) Between the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated Effective Date and the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to there shall be no material adverse change in the Company, as to the validity condition or value of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this AgreementProperty.
b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall b) Unless Purchaser elects to have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) service contract assigned to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed it at or prior to the Closing, in its sole and the Investor shall have received a certificate of a senior officer of the Companyabsolute discretion, dated as of the Closing DateSeller shall, certifying to that fact.
d. On the Closing Dateat its expense, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in terminate all material respects all of its covenants and obligations in this Agreement that are to be performed other service contracts at or prior to the Closing.
c. On (c) All of Seller’s representations and warranties set forth in this Agreement are true in all respects, Seller has performed all of Seller covenants and agreements set forth in this Agreement, and Seller is not otherwise in default under this Agreement.
(d) Seller shall have delivered all documents and items to be delivered by Seller pursuant to Section 12(b) of this Agreement on or prior to the Closing Date.
(e) The Title Company is irrevocably committed to issue an Owner’s Policy and Lender’s Policy (if applicable), for the Property upon the Closing with endorsements as Purchaser and/or its lender reasonably require, subject only to the Permitted Exceptions. If any of Purchaser’s Conditions have not been fulfilled as of the Closing Date, the Investors shall have duly executed Purchaser may, in its sole and delivered absolute discretion, either waive such condition and proceed to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without or terminate this Agreement, in which event (i) the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings entire Deposit shall promptly be released and registrations withreturned to Purchaser, and notifications to(ii) neither party shall thereafter have any rights or obligations to the other hereunder, all governmental or regulatory authorities (collectivelyother than pursuant to any provision hereof that expressly survives the termination of this Agreement. Notwithstanding the foregoing, “Governmental Entities”) required for if any Purchaser’s Condition is not satisfied due to a default on the Investor’s acquisition part of the Securities (but not for Seller, then Purchaser shall also have the conversion of the Preferred Stock into Common Stock) (collectively, with those rights and remedies set forth in 3.3(c), (d), Section 14 and (e), the “Required Approvals”) shall have been obtained elsewhere in this Agreement or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable otherwise available at law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeequity.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date), ; except where the failure of such representations and the Investor shall have received a certificate of the chief executive officer warranties to be so true and chief financial officer of the Company, dated correct (without giving any effect to any limitation as of the Closing Date, substantially in the form to “materiality” or “Material Adverse Effect” set forth in Schedule 3.1(btherein) would not reasonably be expected to this Agreementhave a Material Adverse Effect;
(ii) all obligations, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer of been performed or complied with in all material respects;
(iii) the Company, dated as of Merger Closing shall occur concurrently with the Closing Date, certifying to that fact.Closing;
d. On (iv) the Closing Date, aggregate Subscription Amount for all the Company Securities shall have duly executed and been delivered to the Investor Escrow Agent by wire transfer of immediately available funds to an Investor Agreement account specified in substantially writing by the form Company in accordance with the Escrow Agreement; and
(v) the delivery by each Purchaser of the items set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”Section 2.2(b).
3.2. (b) The obligation respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all respects when made and on the Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).; except where the failure of such representations and warranties to be so true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) would not reasonably be expected to have a Material Adverse Effect;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed or complied with in all material respects;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a);
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) the Merger Closing shall occur concurrently with the Closing Dateand none of the Company, the Investors Parent or Merger Sub shall have duly executed waived any of the conditions to their respective obligations to consummate the Merger Closing without the prior written consent of the Purchasers;
(vi) the Common Sale Closing has occurred, or substantially concurrently with the Closing will occur, (A) pursuant to which the Company received, or will receive, cash in an amount equal to at least $22,500,000 in the aggregate pursuant to the sale of shares of Common Stock (with no other accompanying security of the Company) and/or units of the Company comprised of (y) a share of Common Stock and (z) a warrant to purchase one-half (1/2) share of Common Stock at an exercise price of $11.50 per share, at a price per such unit of no less than $8.75; provided, however, that no more than $7,000,000 of such aggregate amount may be received by the Company pursuant to the sale of shares of Common Stock (with no other accompanying security of the Company) at a price per share of no less than $8.55; and (B) the Company shall not have waived any of the conditions to its obligations to consummate the Common Sale Closing without the prior written consent of the Purchasers;
(vii) the aggregate Subscription Amount for the Securities purchased by the other Purchasers who are not Affiliates of such Purchaser shall have been, or substantially concurrently with the Closing will be, delivered to the Company each by wire transfer of immediately available funds to an account specified in writing by the Registration Rights Agreement and Company;
(viii) the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with Nasdaq an application for the Secretary of State listing of the State Listed Securities on Nasdaq, a copy of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock which shall have been duly authorized for listingprovided to the Purchasers, subject to official notice and Nasdaq shall have raised no objection with respect thereto;
(ix) no judgment, writ, order, injunction, award or decree of issuanceor by any court, on or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the New York Stock Exchange.
c. The Board of Directors Merger Closing or the consummation of the Federal Deposit Insurance Corporation transactions contemplated hereby or in the other Transaction Documents; and
(x) there shall have granted be no Action by a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” governmental entity pending or threatened against Lazy Days’, Parent, the Company or Merger Sub or any of its subsidiaries for purposes their respective Affiliates arising out of, or in any way connected with, the Merger Agreement or any of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detrimentthereby.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Coliseum Capital Management, LLC), Securities Purchase Agreement (Andina II Holdco Corp.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each of the the Closings are subject to complete the following conditions being met:
(i) the accuracy in all material respects when made and on each of the Closing Dates of the representations and warranties of the Purchaser contained herein;
(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to each of the Closing Dates have been performed; and
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b), 2.2(c), 2.2(d), and 2.2(e) of this Agreement.
(b) The respective obligations of the Purchaser hereunder in connection with each of the Closings are subject to the following conditions being met:
(i) the transactions contemplated by Section 2 hereof the Asset Purchase Agreement shall have been consummated;
(ii) the “Stock Purchase”Purchaser shall have entered into the License Agreement with OmniReliant;
(iii) shall be conditioned the accuracy in all material respects on the satisfaction or waiver each of the following conditions:
3.1. The obligation Closing Dates of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement shall be true herein;
(iv) all obligations, covenants and correct on and as agreements of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are required to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as each of the Closing Date, certifying to that fact.Dates shall have been performed;
d. On (v) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(vi) as of each of the Closing DateDates, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto performed its obligations under Section 4.11 of this Agreement;
(the “Investor Agreement”vii) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as each of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another dateDates, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree event shall be in effect that would prohibit materially and adversely effects the (i) legality, validity or enforceability of any Transaction Document, or (ii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document; andfrom the date hereof to each of the Closing Dates, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and no Governmental Entity and, at any time prior to each of the Closing Dates, trading in securities generally as reported by Bloomberg L.P. shall not have instituted an investigation been suspended or proceeding that could result limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in such a judgmentits effect on, injunctionor any material adverse change in, order any financial market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or decreeinadvisable to purchase the Shares at each of the Closings.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Zurvita Holdings, Inc.), Securities Purchase Agreement (Beyond Commerce)
Closing Conditions. The Each Purchaser’s obligation of to purchase the parties to complete Special Warrants at the transactions contemplated by Section 2 hereof (the “Stock Purchase”) Closing Time shall be conditioned on conditional upon the satisfaction fulfilment at or waiver before the Closing Time of the following conditions:
3.1. The obligation of (a) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor Company shall have received an opinion, dated materially complied with all the covenants and materially satisfied all the terms and conditions of this Agreement on its part to be complied with and materially satisfied at or prior to the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to Time and the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and in all material respects as of the date hereof and on and as of at the Closing Date Time with the same force and effect as if made on and as at the Closing Time;
(b) Mackie shall have received at the Closing Time certificates dated the Closing Date, signed by appropriate officers of the Company and addressed to Mackie, with respect to the constating documents of the Company and all resolutions of the Company’s board of directors relating to the Transaction Documents, the incumbency and specimen signatures of signing officers;
(c) Mackie shall have received at the Closing Date Time evidence that all requisite approvals, consents and acceptances of the appropriate regulatory authorities (except including the Securities Regulators) required to be made or obtained by the Company in order to complete the Offering have been made or obtained;
(d) the Subscription Agreements, the Special Warrant Indenture, the Warrant Indenture, the Compensation Option Certificates and the certificates representing the Special Warrants, if any, or other evidence of ownership shall have been executed, endorsed or authenticated, as applicable, and delivered by the parties thereto in form and substance satisfactory to Mackie, acting reasonably;
(e) the Company shall have filed a CSE Form 9 with the CSE;
(f) Mackie shall have received a certificate from Computershare Trust Company of Canada, in its capacity as transfer agent and registrar for any such representations or warranties made the Common Shares, as to the number of Common Shares issued and outstanding as of the close of business on the date hereof or as of another date, which prior to the Closing Date;
(g) Mackie shall be true and correct as of such date), have received legal opinions addressed to Mackie and the Investor Purchasers dated the Closing Date, from Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, or local counsel with respect to those matters governed by the laws of jurisdictions other than the jurisdictions in which it is qualified to practice, in form and substance satisfactory to Mackie, acting reasonably (it being understood that such counsel may rely to the extent appropriate in the circumstances: (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company; (ii) as to the issued and outstanding capital of the Company, on a certificate or letter of Computershare Trust Company of Canada; and (iii) as to matters of fact not independently established, on certificates of public officials).
(h) Mackie shall have received a certificate of status (or the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(bequivalent) with respect to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of Material Subsidiaries under the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any respective jurisdiction of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detrimentexistence.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation (i) the accuracy of the Investor to complete the Stock Purchase representations and warranties of each Purchaser contained herein (unless as of a specific date therein in which case they shall be conditioned accurate as of such date) in all material respects on the Closing Date;
(ii) all obligations, covenants and agreements of each Purchaser required to be performed on or prior to the Closing Date shall have been performed;
(iii) the delivery by each Purchaser of this Agreement duly executed by the Purchaser; and
(iv) the receipt by the Company of the Aggregate Purchase Price.
(b) The obligations of each Purchaser hereunder in connection with the Closing are subject to the satisfaction or waiver by the Investor (solely as to such Purchaser) of the following conditions:
a. The Investor shall have received an opinion, dated (i) the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity accuracy of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and herein (unless as of the a specific date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(btherein) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects when made and on the Closing Date;
(ii) all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at on or prior to the ClosingClosing Date shall have been performed;
(iii) the delivery by the Company of this Agreement duly executed by the Company;
(iv) a copy of the irrevocable instructions to the Transfer Agent dated the Closing Date instructing the Transfer Agent to issue and register in the name of each Purchaser, or its broker-dealer as specified on Schedule A, the number of Shares set forth on Schedule A;
(v) the Class A Ordinary Shares shall not have been suspended by the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Capital Market (“Nasdaq Capital Market”) or from trading on Nasdaq Capital Market, and no such suspension by the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.SEC has been threatened;
d. On the Closing Date, (vi) the Company shall have duly executed obtained all governmental, regulatory or third party consents and delivered to approvals, if any, required as a precondition for the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation sale of the Company to complete the Stock Purchase shall be conditioned on the satisfaction Shares;
(vii) no statute, rule, regulation, executive order, decree, ruling or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock injunction shall have been duly authorized for listingenacted, subject to official notice entered, promulgated or endorsed by any court or governmental authority of issuance, on competent jurisdiction that prohibits the New York Stock Exchange.
c. The Board consummation of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement;
(viii) since the date of execution of this Agreement, without no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect (as defined below);
(A) the imposition of any term, condition or consequence Registration Statement (as defined below) shall become and remain effective at all times up to and including the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings Closing Date and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition issuance of the Securities Shares to the Purchasers may be made thereunder; (but not for B) neither the conversion Company nor any of the Preferred Stock into Common StockPurchasers shall have received notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or has threatened to do so; and (C) no other suspension or withdrawal of the effectiveness of such Registration Statement or the Prospectus shall exist; and
(collectively, with those set forth in 3.3(cx) the Company shall have delivered to Purchasers the Prospectus (as defined below), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall which may be delivered in full force and effect and all waiting periods accordance with Rule 172 under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeSecurities Act.
Appears in 2 contracts
Sources: Securities Purchase Agreement (STAK Inc.), Securities Purchase Agreement (STAK Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing Date are subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver by the Company, at or before the applicable Closing Date, of each of the following conditions:
3.1. The obligation (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the applicable Closing Date of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company applicable Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each applicable Purchaser required to be performed at or prior to the Closing, and the Investor applicable Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each applicable Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement for the Primary Closing and items set forth in Section 2.2(d) of this Agreement for the Secondary Closing.
(b) The respective obligations of each Purchaser hereunder in connection with the Closing Date, certifying are subject to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by such Purchaser, at or before the Company applicable Closing, of each of the following conditions:
a. The (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the applicable Closing Date of the representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or warranties unless made as of the a different, and specific, date hereof or as of another dateset forth therein, in which case they shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the applicable Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement for the Primary Closing and items set forth in Section 2.2(c) of this Agreement for the Secondary Closing;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the applicable Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the applicable Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the applicable Closing.
c. On (c) The obligations of Merck Global Health Innovation Fund, LLC hereunder in connection with the Secondary Closing Date, the Investors shall have duly executed and delivered are subject to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both such Purchaser, at or before such Closing, of the Company conditions set forth in Section 2.3(b), as applicable, and the Investor of following additional condition:
(i) the following conditions.
a. The Company shall have duly filed with secured each required Shareholder Approval and the Secretary of State satisfaction of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(520 calendar day waiting period required by Rule 14c-2(b) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeExchange Act.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Opgen Inc), Securities Purchase Agreement (Opgen Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met or waived by Section 2 hereof the Company:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects when made and on the satisfaction or waiver applicable Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any with respect to representations and warranties which relate to a specific date, in which case such representations or and warranties made as of the date hereof or as of another date, which shall continue to be true and correct materially accurate as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchasers required to be performed at or prior to the Closing, and the Investor applicable Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by the Purchasers of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with each Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met or waived by each Purchaser as to itself:
(i) the accuracy in substantially all material respects on the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation applicable Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any with respect to representations and warranties which relate to a specific date, in which case such representations or and warranties made as of the date hereof or as of another date, which shall continue to be true and correct materially accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.
c. On the applicable Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listing, subject to official notice of issuance, on performed;
(iii) the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation Company shall have granted amended Article II, Section 11 of the Company’s Bylaws, effective as of the First Closing, to permit actions to be taken by the written consent of the holders of a written “cross guarantee waiver” pursuant to simple majority of the Company’s outstanding Common Stock;
(iv) the delivery by the Company of the items set forth in Section 5(e)(52.2(a) of the U.S. Federal Deposit Insurance Act in form this Agreement, and substance reasonably acceptable as to the Company and Second Closing only, the Investor.items in Section 2.2(c);
d. The Board of Governors of the Federal Reserve System (v) there shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” been no Material Adverse Effect with respect to the transactions contemplated Company since the date hereof (it being agreed that any evidence of animal toxicity with respect to SphingomabTM shall be deemed to be a Material Adverse Effect; and
(vi) from the date hereof to the applicable Closing Date, trading in the Common Stock shall not have been suspended by this Agreementthe Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, without which suspension shall be terminated prior to the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(cClosing), (d)and, and (e)at any time prior to the Closing Date, the “Required Approvals”) trading in securities generally as reported by Bloomberg L.P. shall not have been obtained suspended or made and limited, or minimum prices shall be not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in full force and its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termeach Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Shares at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lpath, Inc), Securities Purchase Agreement (Lehman Brothers Holdings Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction (or waiver in writing by the Company) of the following conditionsconditions being met:
3.1. The obligation (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto satisfaction (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver in writing by the Company each Purchaser solely as to such Purchaser) of the following conditionsconditions being met:
a. The (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof until the Closing Date; and
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, Shares and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Warrants at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Galera Therapeutics, Inc.), Securities Purchase Agreement (Galera Therapeutics, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Companyitems set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the ClosingClosing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) The Registration Statement and the ADS Registration Statement shall each be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Purchaser the Prospectus as required thereunder.
c. On (v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors ADSs shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (WiMi Hologram Cloud Inc.), Securities Purchase Agreement (WiMi Hologram Cloud Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (except for those representations and warranties that are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, which are true and correct in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or and warranties made that speak as of the date hereof or as of another a specific date, which shall be true and correct as of such specified date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met, which may be waived in substantially the form set forth as Exhibit B hereto sole discretion of such Purchaser:
(i) the “Investor Agreement”) accuracy in all material respects except for those representations and a Registration Rights Agreement warranties that are qualified by materiality or Material Adverse Effect, which are true and correct in substantially all respects when made and on the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or and warranties made that speak as of the date hereof or as of another a specific date, which shall be true and correct as of such specified date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) the Company shall have obtained voting agreements reasonably acceptable to the Purchasers (“Voting Agreement”) duly executed by holders (“Principal Shareholders”) of at least 50.1% of the issued and outstanding voting capital stock of the Company as of the date of this Agreement agreeing to vote in favor of Shareholder Approval; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties Closing), and, at any time prior to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date, trading in securities generally as reported by Bloomberg L.P. shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial DetrimentNew York State authorities.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (General Steel Holdings Inc), Securities Purchase Agreement (General Steel Holdings Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchasers required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by the Purchasers of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The obligations of the Purchasers hereunder in connection with each Closing Dateare subject to the following conditions being met:
(i) the accuracy in all material respects (or, certifying to that fact.
d. On the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein) with the exception of the representations in this Agreement shall Section 3.1(f) which must be true and correct on in all respects;
(ii) all obligations, covenants and as agreements of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) there shall be adequate shares registered and not previously issued under the Registration Statement to permit the issuance of the Securities; the Registration Statement shall be effective, no stop order shall have been instituted or contemplated and, pursuant to Rule 424, the prospectus supplement shall have been filed with the Commission (the “Prospectus Supplement”); and
(vi) from the date hereof to Closing Date, trading in the Ordinary Shares shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally on any Trading Market shall not have been suspended or limited, or minimum prices shall not have been established on any Trading Market, nor shall a banking moratorium have been declared either by the Investors United States or New York State authorities nor shall there have duly executed and delivered to occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any Trading Market, which, in each case, in the Company each reasonable judgment of the Registration Rights Agreement and Purchasers, makes it impracticable or inadvisable to purchase the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable Warrants at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Freight Technologies, Inc.), Securities Purchase Agreement (Freight Technologies, Inc.)
Closing Conditions. The obligation cancellation of the parties to complete Initial Notes and Initial Warrants and the transactions completion of the acquisition of the Notes and Warrants in replacement therefor as contemplated by Section Article 2 hereof (the “Stock Purchase”) shall be conditioned is subject to fulfilment on the satisfaction or waiver Restated Closing Date of the following conditions:
3.1. The obligation (a) the Lender shall have been satisfied, in its sole discretion, acting reasonably, with the results of its due diligence review of the Investor to complete the Stock Purchase shall be conditioned Company and its businesses, operations and financial conditions, prospects and market conditions on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Restated Closing Date, from Wachtellincluding that there has been no material adverse change (actual, Liptonproposed or prospective, ▇▇▇▇▇ & ▇▇▇▇whether financial or otherwise) in the business, and/or another nationally recognized affairs, operations, assets, liabilities (contingent or otherwise), condition, changes in law firmor regulatory climate directly affecting the jurisdictions in which the Company’s Subsidiaries, taken as counsel to a whole with the Company, as are doing or intended to the validity do business or capital of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to Company since signing of this Agreement.;
b. The (b) each Borrower shall have completed all necessary steps and all necessary proceedings shall have been taken to authorize, and all required consents shall have been obtained to permit, the transactions contemplated hereby;
(c) the acceptance of the Notes and Warrants by the Lender shall be legally permitted by all Laws to which the Lender, each Borrower and each of their respective Subsidiaries are subject, and all authorizations, approvals or permits of, or filings with, any Governmental Body that are required by Law in connection with the lawful sale and issuance of the Notes by the Company and/or the US Borrowers shall have been duly obtained by the Company and/or the US Borrowers, as applicable, and shall be effective;
(d) the representations and warranties of the Company and the US Borrowers contained in this Agreement shall be true and correct on the Restated Closing Date and as the Company and the US Borrowers shall have performed and complied with all of the date hereof terms, covenants, agreements and conditions to be performed or complied with by it at or prior to the Restated Closing Date;
(e) the Notes and Warrant Certificates (both in form and substance satisfactory to the Lender, acting reasonably) subscribed for by the Lender as provided for in Section 2.1 shall be executed and delivered to the Lender, or as the Lender may otherwise direct;
(f) on the Restated Closing Date, the Company and each Credit Party shall have executed and delivered, or caused to be executed and delivered, to the Lender, a certificate signed by the appropriate officers of such Person certifying, inter alia, as to the (i) Articles of the Closing Date as if made on Company, and as all constating, organizational or governing documents of each Subsidiary, (ii) resolutions of the Closing Date (except for any such representations board of directors, managers, shareholders or warranties made members, as applicable, of the date hereof or as Company and each Credit Party authorizing and approving such Person’s execution, delivery and performance of another date, which shall be true and correct as of such date)their obligations under the Transaction Agreements, and (iii) incumbency and signatures of the Investor signing officers of the Company and each Credit Party;
(g) the Company shall deliver a certificate of good standing of recent date for the Company and each Credit Party from the relevant authority in each jurisdiction in which such Person is qualified to do business;
(h) the Lender shall have received a certificate of from counsel for the chief executive officer and chief financial officer of the CompanyCompany an opinion, dated as of the Restated Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior substance satisfactory to the ClosingLender, acting reasonably, including opinions in respect of corporate matters, enforceability, authorization, due execution, perfection and other matters reasonably requested by Lender, and from counsel to the Investor shall have received a certificate of a senior officer of the CompanyCredit Parties and each Cannabis License Holder an opinion, dated as of the Restated Closing Date, certifying in form and substance satisfactory to that fact.the Lender, acting reasonably, including opinions in respect of corporate matters and ownership of the Subsidiaries enforceability, authorization, due execution, perfection, necessary government approvals and other matters reasonably requested by the Lender;
d. On (i) the Closing Date, the Company Security Documents (other than Security Documents required to be delivered under Section 4.20(ii)) and Intercompany Note shall have duly been executed and delivered by the Credit Parties to the Investor an Investor Agreement in substantially Lender, and all investment property required to be delivered into the form set forth as Exhibit B hereto physical possession of the Collateral Agent thereunder shall have been so delivered;
(j) the “Investor Agreement”) Lender shall have received a subordination and intercreditor agreement and a Registration Rights Agreement in substantially non-disturbance agreement, each duly executed by LI Lending, LLC, regarding certain Indebtedness and property of Linchpin Investors, LLC;
(k) the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase Business Combination Documents shall be conditioned on the satisfaction or waiver have been executed and delivered by the Company of Credit Parties to the following conditions:
a. The representations Lender, and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are transactions required to be performed at thereunder on or prior to the Closing.
c. On the Restated Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listingperformed; and
(l) such other documentation as the Lender may reasonably require, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable satisfactory to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956Lender, as amendedacting reasonably, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained prepared, executed and delivered. The foregoing conditions are for the exclusive benefit of the Lender, provided that any of the said conditions may be waived in writing in whole or made and shall be in full force and effect and all waiting periods under part by any the Required Approvals shall have expired or been terminated, Lender without prejudice to such Lender’s rights of rescission in each case without the imposition event of the non-fulfilment and/or non-performance of any termother conditions, condition or consequence any such waiver to be binding on the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be Lender only if the same is in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreewriting.
Appears in 2 contracts
Sources: Securities Purchase Agreement (4Front Ventures Corp.), Securities Purchase Agreement
Closing Conditions. The obligation of the parties to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”a) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the Upon satisfaction or waiver by the Investor party sought to be benefited thereby, of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form conditions set forth in Schedule 3.1(a) to this AgreementSection 2.2, the Closing shall occur.
b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(bb) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at At or prior to the Closing, and the Investor Company shall have received deliver or cause to be delivered to each Purchaser the following:
(i) Debentures in the Subscription Amount indicated below such Purchaser’s name on the signature page of this Agreement, registered in the name of such Purchaser;
(ii) a certificate Warrant to purchase up to a number of a senior officer shares of Common Stock equal to 20% of the shares underlying the Debentures purchased by such Investor with a term of 4 years and an exercise price per Warrant Share equal to $6.17, subject to adjustment therein; and a Warrant to purchase up to a number of shares of Common Stock equal to 20% of the shares underlying the Debentures purchased by such Investor with a term of 4 years and an exercise price per Warrant Share equal to $6.71, subject to adjustment therein.
(iii) the legal opinion of Company Counsel, in the form of Exhibit D attached hereto, addressed to the Purchasers;
(iv) the Registration Rights Agreement duly executed by the Company; and
(v) this Agreement duly executed by the Company.
(c) At or prior to the Closing, dated each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) the Subscription Amount in United States dollars and in immediately available funds, by wire transfer to the account of the Company pursuant to the instructions set forth on Annex 1 attached hereto;
(ii) the Registration Rights Agreement duly executed by such Purchaser; and
(iii) this Agreement duly executed by such Purchaser.
(d) All representations and warranties of the other party contained herein shall remain true and correct as of the Closing Date, certifying ;
(e) There shall have been no Material Adverse Effect (as defined in Section 3.1(b)) with respect to that fact.the Company since the date hereof; and
d. On (f) From the date hereof to the Closing Date, trading in the Company Common Stock shall not have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver been suspended by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date Commission (except for any such representations or warranties made as suspension of trading of limited duration agreed to by the date hereof or as of another dateCompany, which suspension shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or terminated prior to the Closing.
c. On ), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Investors Principal Market, nor shall a banking moratorium have duly executed and delivered to been declared either by the Company United States or New York State authorities, nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Registration Rights Agreement and Purchaser, makes it impracticable or inadvisable to purchase the Investor AgreementDebentures at the Closing.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. (g) The Company shall have duly filed with the Secretary received Purchase Agreements from Purchasers for an aggregate of State all $10,000,000 of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock ExchangeDebentures.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Hollis Eden Pharmaceuticals Inc /De/), Securities Purchase Agreement (Hollis Eden Pharmaceuticals Inc /De/)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the ClosingClosing Date shall have been performed;
(iii) The Company shall have filed, if applicable, a listing of additional shares notification with The NASDAQ Stock Market LLC in connection with the sale and issuance of the Shares, and the Investor shall have received a certificate of a senior officer no objections thereto from The NASDAQ Stock Market LLC; and
(iv) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and herein (unless as of the a specific date hereof therein) and on and as a certificate of the Closing Date as if made on Company’s Chief Executive Officer or Chief Financial Officer attesting to the foregoing;
(ii) all obligations, covenants and as agreements of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Marathon Patent Group, Inc.), Securities Purchase Agreement (Marathon Patent Group, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver applicable Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor applicable Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with each Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered (except as set forth below) are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation applicable Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the applicable Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) as to the First Closing., all of the outstanding convertible promissory notes of the Company shall have been converted into Preferred Stock pursuant to Exchange Agreements, in form and substance satisfactory to the Purchasers in their sole discretion, or such promissory notes shall be redeemed for cash out of the proceeds of the First Closing, in each case with agreements thereof satisfactory to the Purchasers in their sole discretion, or such convertible promissory notes are paid off in full prior to the First Closing, with evidence thereof satisfactory to the Purchasers in their sole discretion;
c. On (v) as to the Second Closing, the Reverse Stock Split shall be effective;
(vi) as to the Third Closing, the Common Stock is quoted for trading on the OTCQB or the OTCQX and the Roll Up has been consummated;
(vii) as to the Third Closing, the Registration Statement registering all of the Registrable Securities shall have been declared effective by the Commission;
(viii) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(ix) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase applicable Closing, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Iconic Brands, Inc.), Securities Purchase Agreement (Iconic Brands, Inc.)
Closing Conditions. (a) The obligation of the parties Company hereunder to complete issue and sell the transactions contemplated by Section 2 hereof (Shares and the “Stock Purchase”) shall be conditioned on Warrants to the satisfaction Purchasers at the Closing is subject to the satisfaction, at or waiver before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Purchasers with prior written notice thereof:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of made by the Company contained Purchaser in this Agreement Section 3.2 hereof qualified as to materiality shall be true and correct at all times prior to and on and the Closing Date, except to the extent any such representation or warranty expressly speaks as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date), and, the representations and warranties made by the Purchaser in Section 3.2 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date;
(ii) all obligations, covenants and agreements of the Purchaser under this Agreement required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The obligation of each Purchaser hereunder to purchase the Shares and the Warrant at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for each Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) the representations and warranties of the Company that are qualified by a materiality standard or Material Adverse Effect, shall have been true and correct when made and shall be true and correct as of the Closing Date and the representations and warranties of the Company that are not qualified by a materiality standard or Material Adverse Effect, shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, and the Investor Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date, and the Purchaser shall have received a certificate of certificate, executed by the chief executive officer and chief financial officer Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing Date, substantially in to the form foregoing effect;
(ii) the delivery by the Company of the items set forth in Schedule 3.1(bSection 2.2(a) to of this Agreement;
(iii) the Common Stock (I) shall be designated for quotation or listed on the Principal Market (as defined in the Warrant) and shall not have been suspended, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.by the Commission or the Principal Market from trading on the Principal Market;
d. On the Closing Date, (iv) the Company shall have duly executed obtained all governmental, regulatory or third party consents and delivered to approvals, if any, necessary for the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation sale of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver Securities, including without limitation, those required by the Company of the following conditions:Principal Market;
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations v) no statute, rule, regulation, executive order, decree, ruling or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock injunction shall have been duly authorized for listingenacted, subject to official notice entered, promulgated or endorsed by any court or governmental authority of issuance, on competent jurisdiction that prohibits the New York Stock Exchange.
c. The Board consummation of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by the Transaction Documents;
(vi) since the date of execution of this Agreement, without no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect; and
(vii) the imposition Company shall have filed with Nasdaq a Notification Form: Listing of any termAdditional Shares for the listing of the Shares and the Warrant Shares, condition or consequence the acceptance a copy of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under available to the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreePurchaser.
Appears in 2 contracts
Sources: Subscription Agreement (Atlas Venture Fund VII L P), Subscription Agreement (ARCA Biopharma, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects (or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof or as of another dateare qualified by materiality, which shall be true and correct in all respects) as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof are qualified by materiality or as of another dateMaterial Adverse Effect, which shall be true and correct in all respects) as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date hereof to the Closing Date, no stop order suspending the Investors shall have duly executed and delivered to the Company each effectiveness of the any Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Statement shall have been duly authorized issued and no proceedings for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation that purpose shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of been instituted or contemplated by the U.S. Federal Deposit Insurance Act Commission, trading in form and substance reasonably acceptable the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have issued been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in banking moratorium have been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing; and
(vi) The Company has, and or has the ability to use, all of its Intellectual Property Rights and, as of the applicable Closing Date, there is no Governmental Entity shall have instituted an investigation pending or threatened interference, reissue, reexamination, derivation, post-grant review, inter partes review, or opposition proceeding that could result in such a judgment, injunction, order or decreeinvolving any of the Company’s Intellectual Property Rights.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Aethlon Medical Inc), Securities Purchase Agreement (Aethlon Medical Inc)
Closing Conditions. The obligation of the parties hereto to complete consummate the transactions contemplated by Section 2 hereof (purchase and sale of the “Stock Purchase”) shall be conditioned on Preferred Shares pursuant to this Agreement is subject to the satisfaction or waiver of the following conditions:
3.1. The obligation (a) no applicable governmental authority shall have enacted, rendered, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the Investor to complete transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the Stock Purchase transactions contemplated hereby;
(b) the Company shall have obtained the Shareholder Approval and the Articles shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:in full force and effect;
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel (c) (i) solely with respect to the CompanyInvestor’s obligation to close, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of made by Pagaya, and (ii) solely with respect to Pagaya’s obligation to close, the Company contained representations and warranties made by the Investor, in each case, in this Agreement shall be true and correct on and as of the date hereof and on and in all material respects as of the Closing Date other than (x) those representations and warranties that are qualified by materiality, Material Adverse Effect (as if made on defined below) or similar qualification, which shall be true and correct in all respects as of the Closing Date and (except for any such y) those representations or and warranties expressly made as of the date hereof or as of another an earlier date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at (or, if qualified by materiality, Material Adverse Effect or prior to the Closingsimilar qualification, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The which representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct in all respects) as of such date).dates;
b. The (d) solely with respect to ▇▇▇▇▇▇’s obligation to close, the Investor shall have performed wired the Purchase Amount in accordance with Section 2 of this Agreement and otherwise performed, satisfied and complied with, in all material respects respects, all of its covenants covenants, agreements and obligations in conditions required by this Agreement that are required to be performed at performed, satisfied and complied with by the Investor on or prior to the Closing.
c. On before the Closing Date;
(e) solely with respect to Pagaya’s obligation to close, the Investors Investor shall have duly executed and delivered provided to Pagaya the documents set forth on Schedule B hereto;
(f) solely with respect to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The Investor’s obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company close, Pagaya shall have duly filed performed, satisfied and complied with, in all material respects, all of its covenants, agreements and conditions required by this Agreement that are required to be performed, satisfied and complied with by ▇▇▇▇▇▇ on or before the Secretary of State of Closing Date;
(g) solely with respect to the State of Delaware Investor’s obligations to close, the Class A Ordinary Shares into which the Preferred Stock CoD.
b. The shares of Common Stock issuable at Shares will be convertible (the Closing or upon conversion of the Preferred Stock “Underlying Shares”) shall have been duly authorized approved for listinglisting on the Nasdaq Stock Market LLC (“Nasdaq”), subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors and no suspension of the Federal Deposit Insurance Corporation qualification of the Class A Ordinary Shares for offering or sale or trading on Nasdaq and no initiation or threatening of any proceedings for any of such purposes or delisting, shall have granted occurred; and
(h) solely with respect to the Investor’s obligation to close, ▇▇▇▇▇▇ shall have delivered to the Investor a written “cross guarantee waiver” pursuant legal opinion from counsel to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act Pagaya in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Preferred Shares Purchase Agreement (Pagaya Technologies Ltd.), Preferred Shares Purchase Agreement (Pagaya Technologies Ltd.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects on (or, to the extent representations or warranties are qualified by Section 2 hereof (materiality or Material Adverse Effect, in all respects) the “Stock Purchase”) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company and the representations and warranties of Artemis contained in this Agreement shall be true and correct on and herein (unless as of the a specific date hereof therein);
(ii) all obligations, covenants and on and as agreements of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) Immediately following the closing of the Acquisition Agreement and assuming receipt of the net proceeds raised hereunder, the net cash balance on hand (net of any fees and expenses related to the consummation of the Acquisition Agreement or current liabilities) shall be at least $1.1 million, as certified by the Company’s chief financial officer;
(iv) The license agreement by and between Artemis, Hadasit Medical Research Services & Development, Ltd. and Hong Kong University of Science and Technology R and D Corporation Limited has been entered into and finalized; and
(v) the delivery of written evidence satisfactory to the Purchasers of the consummation of the transactions contemplated by the Acquisition Agreement;
(vi) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(vii) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(viii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (New York Global Innovations Inc.), Securities Purchase Agreement (New York Global Innovations Inc.)
Closing Conditions. (a) The obligation of Seller to sell, transfer and assign the parties applicable Shares at each Closing Date to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on Company hereunder is subject to the satisfaction or waiver of the following conditionsconditions as of each Closing:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement Section 5 hereof shall be true and correct on and as of the date hereof and on and as of the applicable Closing Date with the same effect as if though made on at and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date);
(ii) the Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the applicable Closing Date;
(iii) the Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the Investor transactions contemplated herein;
(iv) Seller shall have received a certificate, dated as of the applicable Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in this Section 3(a) have been satisfied; and
(v) Seller shall have received a certificate of the chief executive officer and chief financial officer Secretary or an Assistant Secretary (or equivalent officer) of the Company, dated as Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Closing DateCompany authorizing the execution, substantially delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force and effect and are all the form set forth resolutions adopted in Schedule 3.1(b) to this Agreement, certifying to that factconnection with the transactions contemplated hereby.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”b) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete purchase the Stock Purchase shall be conditioned on applicable Shares from Seller is subject to the satisfaction or waiver by the Company of the following conditionsconditions as of each Closing:
a. The (i) the representations and warranties of the Investor contained Seller in this Agreement Sections 4(a), 4(b), 4(c) and 4(d) shall be true and correct on and as of the date hereof and on and as of the each Closing Date with the same effect as if though made on at and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).;
b. The Investor (ii) Seller shall have performed and complied in all material respects with all of its covenants agreements and obligations in conditions required by this Agreement that are to be performed at or complied with by it prior to or on the Closing.
c. On the applicable Closing Date, the Investors ;
(iii) Seller shall have duly executed obtained any and delivered to all consents, permits, approvals, registrations and waivers necessary for consummation of the transactions contemplated herein;
(iv) the Company shall have received a certificate, dated the applicable Closing Date and signed by a duly authorized officer of Seller, that each of the Registration Rights conditions set forth in this Section 3(b) have been satisfied; and
(v) the Company shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the Investor Agreement.
3.3. The obligation consummation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations withhereby, and notifications to, that all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be such resolutions are in full force and effect and are all waiting periods under the Required Approvals shall have expired or been terminated, resolutions adopted in each case without connection with the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreetransactions contemplated hereby.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Miromatrix Medical Inc.), Stock Purchase Agreement (Miromatrix Medical Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects (or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof or as of another dateare qualified by materiality, which shall be true and correct in all respects) as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof are qualified by materiality or as of another dateMaterial Adverse Effect, which shall be true and correct in all respects) as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) the Registration Statement shall be effective on the date of this Agreement and at the Closing Date, no stop order suspending the Investors shall have duly executed and delivered to the Company each effectiveness of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Statement shall have been duly authorized issued and no proceedings for listing, subject to official notice of issuance, that purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the New York Stock Exchange.
c. The Board of Directors part of the Federal Deposit Insurance Corporation Commission for additional information shall have granted a written “cross guarantee waiver” pursuant been complied with to Section 5(e)(5) the reasonable satisfaction of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable Placement Agent; and
(vi) from the date hereof to the Company and Closing Date, trading in the Investor.
d. The Board of Governors of Common Stock shall not have been suspended by the Federal Reserve System Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have issued been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in banking moratorium have been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Safe & Green Development Corp), Securities Purchase Agreement (Safe & Green Development Corp)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver applicable Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor applicable Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with each Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) applicable Closing Date of the representations and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation warranties of the Company contained herein (unless as of a specific date therein);
(ii) all obligations, covenants and agreements of the Company required to complete be performed pursuant to the Stock Purchase Transaction Documents at or prior to the applicable Closing Date shall be conditioned on have been performed;
(iii) the satisfaction or waiver delivery by the Company of the following conditions:items set forth in Section 2.2(a) of this Agreement;
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock iv) there shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” no Material Adverse Effect with respect to the transactions contemplated by this AgreementCompany since the date hereof;
(v) as to the Second Closing Shareholder Approval shall have been obtained and deemed effective;
(vi) as to the Second Closing, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, Registration Statement registering all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Registrable Securities (but not for as defined in the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”Registration Rights Agreement) shall have been obtained or made declared effective by the Commission and shall be in full force and effect and all waiting periods under have thereafter remained effective;
(vii) as to the Required Approvals Second Closing, such Second Closing shall have expired occurred on or before ninety (90) days following the First Closing; and
(viii) from the date hereof to the applicable Closing Date, trading in the Common Stock shall not have been terminatedsuspended by the Commission or the Company’s principal Trading Market and, at any time prior to the applicable Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any Securities at the applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Capnia, Inc.), Securities Purchase Agreement (Capnia, Inc.)
Closing Conditions. The (a) As a condition to the Purchasers’ obligation to close, at the Closing (unless otherwise specified below) the Company shall have satisfied each of the parties conditions set forth below or shall deliver or cause to complete be delivered to each Purchaser the transactions contemplated items set forth below, as appropriate, any one or more of which may be waived in writing by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditionsPurchasers:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver (i) this Agreement duly executed by the Investor of Company;
(ii) the following conditions:Registration Rights Agreement duly executed by the Company;
a. The Investor shall have received an opinion, dated (iii) the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to Escrow Agreement duly executed by the Company, as to the validity Escrow Agent and the placement agents listed therein;
(iv) a legal opinion of the Securities being sold each of Company Counsel and Israeli Company Counsel, in the Stock Purchase, substantially forms in Exhibit B attached hereto;
(v) the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of made by the Company contained in this Agreement herein shall be true and correct on in all material respects (except any representation and warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of the date hereof and as of the Closing Date with the same effect as if the representations and warranties were made as of the date hereof and as of the Closing Date;
(vi) all covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing shall have been performed or complied with in all material respects;
(vii) no statute, rule, regulation, order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which in any material respect restricts, prohibits or threatens to restrict or prohibit the consummation of any of the transactions contemplated by the Transaction Documents; and
(viii) as of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. With respect to the closing conditions listed in (v), (vi), (vii) and (viii) above, the Company shall deliver a certificate to such effect, in form and substance reasonably satisfactory to the Placement Agents.
(b) As a condition to the Company’s obligation to close, at the Closing, each Purchaser shall have satisfied each of the conditions set forth below or shall deliver or cause to be delivered to the Company the items set forth below, as appropriate, any one or more of which may be waived in writing by the Company:
(i) this Agreement duly executed by such Purchaser;
(ii) the Registration Rights Agreement duly executed by such Purchaser;
(iii) the representations and warranties made by the Purchasers herein shall be true and correct in all material respects (except any representation and warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of the date hereof and as of the Closing Date with the same effect as if made on the representations and as of the Closing Date (except for any such representations or warranties were made as of the date hereof or and as of another datethe Closing Date;
(iv) the Escrow Agreement duly executed by the Company, the Escrow Agent and the placement agents listed therein;
(v) each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or before the Closing;
(vi) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the consummation of any of the transactions contemplated by the Transaction Documents; and
(vii) each Purchaser shall have caused such Purchaser’s Subscription Amount to be true and correct deposited by wire transfer of immediately available funds to such non-interest bearing escrow account of the Escrow Agent as of such datethe Escrow Agent shall designate (the “Escrowed Funds”), and the Investor Escrow Agent shall have received a certificate confirmed that it is prepared to transfer such amount to the Company subject only to satisfaction of the chief executive officer and chief financial officer receipt of the Company, dated certificate provided in Section 2.3 hereof; and
(viii) as of the Closing Date, substantially in there shall have been no Material Adverse Effect with respect to the form set forth in Schedule 3.1(b) to this Agreement, certifying to that factCompany since the date hereof.
c. The Company shall have performed in all material respects all (c) As a condition to the Company’s and each Purchaser’s obligation to close, by the time of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, the Company’s Ordinary Shares on the Official List of the United Kingdom Listing Authority shall have been de-listed, and the Investor Registration Statement shall have received be declared effective only following such de-listing.
(d) As a certificate of a senior officer condition to the Company’s and each Purchaser’s obligation to close, by the time of the CompanyClosing, dated as the board of the Closing Date, certifying to that fact.
d. On the Closing Date, directors of the Company shall have duly executed and delivered approved the issuance of the Shares.
(e) As a condition to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) Company’s and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The each Purchaser’s obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver close, by the Company time of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity the Tel Aviv Stock Exchange shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeapproved the listing of the Shares.
Appears in 2 contracts
Sources: Securities Purchase Agreement (XTL Biopharmaceuticals LTD), Securities Purchase Agreement (XTL Biopharmaceuticals LTD)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects on (or, to the extent representations or warranties are qualified by Section 2 hereof (materiality or Material Adverse Effect, in all respects) the “Stock Purchase”) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the Amendment to the Intercreditor Agreement duly executed by FastPay and the Company, in form satisfactory to the Purchasers in their sole discretion;
(v) the Assignment of Trade Receivable duly executed by MobileFuse LLC, MediaMath, Inc. and Kargo Global Inc., respectively, and the Company for assignment of interest in receivables to ATW, in form satisfactory to the ATW in its sole discretion;
(vi) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (SOCIAL REALITY, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver applicable Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor applicable Closing Date shall have received a certificate been performed; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with each Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the applicable Closing Date of the representations and warranties of the Company contained herein (unless as of a senior officer of the Company, dated specific date therein in which case they shall be accurate as of such date);
(ii) as to the Closing Date, certifying to that fact.
d. On the Closing DateFirst Closing, the Company shall have duly executed provided written evidence of the cancellation of that certain Common Stock Purchase Agreement dated May 27, 2016 with Redwood Management, LLC;
(iii) all obligations, covenants and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation agreements of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are required to be performed at or prior to the applicable Closing Date shall have been performed;
(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) as to the Second Closing., the Registration Statement registering all of the Registrable Securities for resale shall have been filed with the Commission;
c. On (vi) as to the Third Closing, the Registration Statement registering all of the Registrable Securities for resale shall have been declared effective by the Commission;
(vii) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(viii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase applicable Closing, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any Securities at the applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Premier Biomedical Inc), Securities Purchase Agreement (Premier Biomedical Inc)
Closing Conditions. (a) The obligation obligations of EXECUTIVE EDUCATION hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the parties to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company PURCHASER contained in this Agreement herein;
(ii) no statute, rule, regulation, executive order, decree, ruling or injunction shall be true and correct on and as have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the date hereof transactions contemplated by the Agreement;
(iii) all obligations, covenants and on and as agreements of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are PURCHASER required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed in all material respects;
(iv) the delivery by the PURCHASER of the Company, dated as duly executed Agreement; and
(v) the delivery by the PURCHASER of the Closing Date, certifying to that factPurchase Price.
d. On (b) The respective obligations of the PURCHASER hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects when made and on the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or and warranties made that speak as of the date hereof or as of another a specific date, which shall be true and correct as of such date).
b. The Investor shall have performed accurate in all material respects as of such specified date) of EXECUTIVE EDUCATION contained herein;
(ii) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreement;
(iii) all of its obligations, covenants and obligations in this Agreement that are agreements of EXECUTIVE EDUCATION required to be performed at or prior to the Closing.Closing Date shall have been performed in all material respects;
c. On (iv) the delivery by EXECUTIVE EDUCATION of the duly executed Agreement;
(v) the delivery by EXECUTIVE EDUCATION of the stock certificate evidencing the number of shares of Common Stocks duly issued; and
(vi) from the date hereof to the Closing Date, trading in the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in suspended by the United States Securities and Exchange Commission or EXECUTIVE EDUCATION’s principal trading market, the OTC Bulletin Board (the “Trading Market”) (except for any suspension of trading of limited duration agreed to by EXECUTIVE EDUCATION, which suspension shall have issued a “clearance letter” with respect be terminated prior to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial DetrimentClosing).
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (China Executive Education Corp), Securities Purchase Agreement (China Executive Education Corp)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete effect the transactions contemplated by Section 2 hereof Closing are subject to the following conditions being met:
(i) the “Stock Purchase”accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of a Purchaser hereunder to effect the Closing, and unless waived by such Purchaser, are subject to the Investor shall have received a certificate of a senior officer following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the Closing Date of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the Escrow Agent shall have received executed signature pages to this Agreement and aggregate Subscription Amount of $500,000 prior to the Closing.;
c. On (iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act trading in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment securities in the United States generally as reported by Bloomberg L.P. shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained suspended or made and limited, nor shall be a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in full force and its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Accelerated Pharma, Inc.), Securities Purchase Agreement (Accelerated Pharma, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Companyitems set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the Registration Statement shall be effective and available for the issuance and sale of the Shares hereunder and the Company shall have delivered to such Purchaser the Prospectus and the Prospectus Supplement as required thereunder;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Shares shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition occurred any material outbreak or escalation of any term, condition hostilities or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals other national or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition international calamity not currently existing as of the Securities (but not for the conversion date hereof of the Preferred Stock into Common Stock) (collectivelysuch magnitude in its effect on, with those set forth in 3.3(c)or any material adverse change in, (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedTrading Market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (China Natural Resources Inc), Securities Purchase Agreement (China Natural Resources Inc)
Closing Conditions. (a) The obligation hereunder of the parties Subscriber to complete acquire and pay for the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on Purchased Securities is subject to the satisfaction or waiver waiver, at or before the Closing, of each of the following conditions:
3.1conditions set forth below. The obligation of These conditions are for the Investor to complete the Stock Purchase shall Subscriber’s sole benefit and may be conditioned on the satisfaction or waiver waived by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold Subscriber at any time in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreementits sole discretion.
b. (i) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made given on and as of the Closing Date (except for any such representations or warranties made given as of the date hereof or as of another a specific date, which representations shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of on or before the Closing Date, substantially in Date the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations agreements of the Company contained herein or in this Agreement that are any of the other Transaction Documents required to be performed at by the Company on or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of before the Closing Date, certifying ;
(ii) The Transaction Documents have been duly executed and delivered by the Company to that fact.the Subscriber;
d. (iii) On the Closing Date, the Company Subscriber shall have duly executed and delivered received an opinion of LorentzAngula Incorporated, the Namibian counsel for NMC, dated the Closing Date, addressed to the Investor an Investor Agreement Subscribers, in substantially the form set forth attached as Exhibit B hereto D.
(the “Investor Agreement”b) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation hereunder of the Company to complete issue and sell the Stock Purchase shall be conditioned on Purchased Securities to the Subscriber is subject to the satisfaction or waiver waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company of the following conditions:at any time in its sole discretion.
a. (i) The representations and warranties of the Investor contained Subscriber in this Agreement and each of the other Transaction Documents to which the Subscriber is a party shall be true and correct on and in all material respects as of the date hereof and on when made and as of the Closing Date as if though made on and as of the Closing Date (at that time, except for any such representations or and warranties that are expressly made as of the date hereof or as of another a particular date, which shall be true and correct in all material respects as of such date).;
b. (ii) The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior Purchase Price for the Purchased Securities has been delivered to the Closing.account of AGI for the sole use and benefit of the Company as described by Schedule 6(e) Use of Proceeds; and
c. On (iii) The Transaction Documents to which the Closing Date, the Investors shall Subscriber is a party have been duly executed and delivered by the Subscriber to the Company each of the Registration Rights Agreement and the Investor AgreementCompany.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Subscription Agreement (Next Graphite, Inc.), Subscription Agreement (Next Graphite, Inc.)
Closing Conditions. (a) The obligation obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the closing of the Business Combination;
(ii) all conditions precedent to the closing of the Business Combination set forth in the Unit Purchase Agreement, including, without limitation, the approval of the Company’s stockholders, shall have been satisfied (as determined by the parties to complete the transactions contemplated Unit Purchase Agreement, and other than those conditions which, by Section 2 hereof (their nature, are to be satisfied at the “Stock Purchase”closing of the Business Combination) or waived in writing by the party entitled to the benefit thereof under the Unit Purchase Agreement, and the closing of the Business Combination shall be conditioned scheduled to occur concurrently with the Closing;
(iii) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(iv) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the ClosingClosing Date shall have been performed;
(v) the Stockholder Approval being obtained by the Company; and
(vi) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the closing of the Business Combination;
(ii) the Stockholder Approval being obtained by the Company;
(iii) all conditions precedent to the closing of the Business Combination set forth in the Unit Purchase Agreement shall have been satisfied or waived in writing by the party entitled to the benefit thereof under the Unit Purchase Agreement, and the Investor shall have received a certificate of a senior officer closing of the CompanyBusiness Combination shall be scheduled to occur concurrently with the Closing;
(iv) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed representations and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation warranties of the Company to complete the Stock Purchase contained herein (unless as of a specific date therein in which case they shall be conditioned on accurate as of such date);
(v) all obligations, covenants and agreements of the satisfaction Company required to be performed, satisfied or waiver complied at or prior to the Closing Date shall have been performed;
(vi) the delivery by the Company of the following conditions:items set forth in Section 2.2(a) of this Agreement;
a. The representations (iii) the Unit Purchase Agreement shall not have been amended or modified, nor shall any provisions thereunder have been waived, in any case, in a manner that would reasonably be expected to adversely affect the economic benefits that any Purchaser (in its capacity as such) would reasonably expect to receive under this Agreement or the liabilities that such Purchaser would reasonably expect to incur under this Agreement without the written consent of such Purchaser (which, subject to the conditions of this clause (iii) shall not be unreasonably withheld);
(vii) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(viii) there has been no Target Material Adverse Effect (as defined below) with respect to the Target since the date hereof;
(ix) the Company shall have obtained all governmental, regulatory or third party consents and warranties approvals, if any, necessary for the sale of the Investor contained in this Agreement Securities, including without limitation, those required by any Trading Market, if any;
(x) the Company shall be true and correct on and have obtained approval of the Nasdaq Capital Market to list or designate for quotation (as of the case may be) the Underlying Shares; and
(xi) from the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been continuously halted or suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized continuously suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation more than 11.25 consecutive hours over any two consecutive Trading Days nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (SHF Holdings, Inc.), Securities Purchase Agreement (Northern Lights Acquisition Corp.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Purchaser under this Agreement required to be performed at or prior to the applicable Closing Date shall have been performed in all material respects;
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement; and
(iv) the Company shall have received the executed signature page to this Agreement from the Purchaser and cancellation of the Advances in an amount representing the Subscription Amount from the Purchaser.
(b) The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) each and every representation and warranty of the Company shall be true and correct on in all material respects as of the date when made and as of the date hereof and on and as of the applicable Closing Date as if though originally made on and as of the Closing Date at that time (except for any such representations or and warranties made that speak as of the date hereof or as of another a specific date, which shall be true and correct as of such date), ) and the Investor Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the applicable Closing Date, including, without limitation the issuance of all Securities on the Closing Date as required by the Transaction Documents and the Company has a sufficient number of duly authorized shares of preferred stock and Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and the Purchaser shall have received a certificate of certificate, executed by the chief executive officer and chief financial officer Chief Executive Officer of the Company, dated as of the Closing Date, substantially to the foregoing effect and as to such other matters as may be reasonably requested by the Purchaser in the form set forth in Schedule 3.1(b) acceptable to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto Purchaser (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights AgreementOfficer’s Certificate”).;
3.2. The obligation of (ii) the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver delivery by the Company of the following conditions:items set forth in Section 2.2(a) of this Agreement;
a. The representations (iii) All necessary actions to be taken by the Company in connection with the Transaction and warranties of the Investor contained in this Agreement all documents incident thereto shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act satisfactory in form and substance reasonably acceptable to the Company Purchaser, and the Investor.
d. The Board of Governors of the Federal Reserve System Purchaser shall have issued a written determination that Investor does not and will not “control” the Company received all such counterpart originals or any certified or other copies of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, such documents as amended, without the imposition it or they may request;
(iv) there is no breach of any termobligations, condition covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or consequence the acceptance giving of which notice, would constitute a Substantial Detriment.breach under the Transaction Documents;
e. The Staff of the Committee on Foreign Investment in the United States (v) there shall have issued a “clearance letter” been no Material Adverse Effect with respect to the transactions contemplated by this Agreement, without Company since the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.date hereof;
Appears in 2 contracts
Sources: Securities Purchase Agreement (RiskOn International, Inc.), Securities Purchase Agreement (Ault Alliance, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete effect the transactions contemplated by Section 2 hereof Closing are subject to the following conditions being met:
(i) the “Stock Purchase”accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchasers required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by the Purchasers of the items set forth in Section 2.2(b) of this Agreement.
(b) The obligations of the Purchasers hereunder to effect a Closing, and unless waived by the Investor shall have received a certificate of a senior officer Purchasers, are subject to the following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the Closing Date of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) from the date hereof to each respective Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act trading in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment securities in the United States generally as reported by Bloomberg L.P. shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained suspended or made and limited, nor shall be a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in full force and its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result ;
(v) The Company will be current in such a judgment, injunction, order or decreeits filings with the Commission.
Appears in 2 contracts
Sources: Securities Purchase Agreement (QSAM Biosciences, Inc.), Securities Purchase Agreement (QSAM Biosciences, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Companyitems set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the Registration Statement shall be effective and available for the issuance and sale of the Shares hereunder and the Company shall have delivered to such Purchaser the Preliminary Prospectus and the Prospectus as required hereunder;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Ordinary Shares shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Shares at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Waton Financial LTD), Securities Purchase Agreement (Waton Financial LTD)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete effect the transactions contemplated by Section 2 hereof Closing are subject to the following conditions being met:
(i) the “Stock Purchase”accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement; and
(iv) a Purchaser’s Subscription Amount shall have been deposited with the Escrow Agent.
(b) The respective obligations of a Purchaser hereunder to effect the Closing, and unless waived by such Purchaser, are subject to the Investor shall have received a certificate of a senior officer following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the Closing Date of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Initial Closing Date shall have been performed;
c. On (iii) no Event of Default (as defined in the Initial Transaction Documents) shall have occurred under the Initial Transaction Documents;
(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Reign Sapphire Corp), Securities Purchase Agreement (Reign Sapphire Corp)
Closing Conditions. SECTION 8.1 Conditions Precedent to Obligations of Parent and the Subsidiary. The obligation obligations of Parent and the Subsidiary to proceed with the transactions contemplated hereunder to be consummated at the Closing are subject, at the option of Parent or the Subsidiary, to the fulfillment of each and all of the following conditions at or prior to the Closing Date:
(a) All documents and agreements required hereunder to be delivered to Parent or the Subsidiary at or before the Closing shall have been delivered, and all covenants, agreements and obligations required by the terms of this Agreement to be performed by the Company and each Target at or before the Closing shall have been performed in all material respects when due, and a certificate of the Company and Target dated the Closing Date, to the foregoing effects shall have been delivered to Parent of the Subsidiary at the Closing.
(b) There shall have been delivered to Parent and the Subsidiary at the Closing a certified copy of the resolutions duly adopted by the board of directors of the Company and Target1 and the shareholder of Target1 authorizing and approving the execution and delivery by the Company and Target1 of this Agreement, and the consummation by the Company or Target1 of the transactions contemplated hereby.
(c) All material consents, approvals or waivers of third parties required to complete be obtained by the Company or any Target for the consummation by the Company or such Target of the transactions contemplated by Section 2 hereof this Agreement shall have been duly obtained (with satisfactory written evidence thereof, in recordable form where necessary, to be furnished to Parent and the “Stock Purchase”Subsidiary at the Closing).
(d) shall be conditioned on No litigation to enjoin or restrain the satisfaction or waiver consummation of the following conditions:
3.1. The obligation transactions contemplated hereby, nor governmental or administrative investigation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor affairs of the following conditions:
a. The Investor any Target which could reasonably result in a Material Adverse Effect shall have received an opinionbeen instituted and be continuing.
(e) There shall have been delivered to Parent and the Subsidiary the signed opinion of Powell, Goldstein, Fraz▇▇ & ▇urp▇▇ ▇▇▇, counsel to the Company and Target, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to Parent.
(f) Any and all permits and approvals from any governmental or regulatory body required for the lawful consummation of the Merger shall have been obtained.
(g) The Company and the Investor.
d. The Board of Governors of the Federal Reserve System each Target shall have issued a written determination that Investor does not and will not “control” the Company delivered all such certified resolutions, certificates, documents or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” instruments with respect to such entity's corporate existence and authority as counsel to Parent and the transactions contemplated by this Agreement, without Subsidiary may have reasonably requested prior to the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial DetrimentClosing Date.
f. The approvals or authorizations of, filings (h) Parent and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) Company shall have been obtained or made and shall be entered into a Shareholders' Agreement in full force and effect and all substantially the form of Exhibit C attached hereto (the "Shareholders' Agreement").
(i) The applicable waiting periods period under the Required Approvals HSR Act shall have expired or have been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, .
(j) All material actions and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity proceedings required hereunder shall have instituted an investigation been taken and all material documents and other papers required to be delivered by the Company and Target hereunder or proceeding that could result in such a judgment, injunction, order or decreeconnection with the consummation of the transactions contemplated hereby and all other related matters shall have been delivered.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) each of the Lock-Up Agreements shall remain in full force and effect;
(vi) the number of Shares for which the Purchaser is subscribing to purchase pursuant to this Agreement will not result in such Purchaser ‘s beneficial ownership (as calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) to exceed 9.99% (the “Beneficial Ownership Threshold”); provided, however, that in the event that the Beneficial Ownership Threshold is exceeded, the Purchaser’s subscription pursuant to this Agreement shall be reduced such that the number of Shares subscribed for pursuant to this Agreement shall be equal to the number of Shares which would result in the Purchaser’s beneficial ownership equaling 9.99% after giving effect to the Closing.. A determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder; and
c. On (vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing. Notwithstanding the foregoing, this Subsection (vii) shall not be construed to include suspension of trading of the Registration Rights Common Stock in the Company’s principal Trading Market on the date hereof for the purpose of disclosure of this Agreement and the Investor AgreementTransaction Documents.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (iSpecimen Inc.), Securities Purchase Agreement (Context Therapeutics Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects (or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof or as of another dateare qualified by materiality, which shall be true and correct in all respects) as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of accurate in all material respects or, to the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such extent representations or warranties made as of the date hereof are qualified by materiality or as of another dateMaterial Adverse Effect, which shall be true and correct in all respects) as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company;
(v) approval of a listing application from the Nasdaq Capital Market approving the issuance of the Underlying Shares in accordance with the terms of the Transaction Documents;
(vi) the Company shall have consummated the transactions contemplated by the Underwriting Agreement generating gross proceeds of the Company of at least $5,000,000; and
(vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company's principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (Volcon, Inc.), Securities Purchase and Exchange Agreement (Volcon, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditionsconditions being met:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement herein shall be true true, accurate and correct complete in all material respects (other than representations that are qualified as to materiality or a Material Adverse Effect which shall be true, accurate and complete in all respects) on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties unless made as of the date hereof or as of another a specific date, in which case, such truth, accuracy and completeness shall be true and correct measured as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate been performed; and
(iii) each Purchaser shall have delivered the items set forth in Section 2.2(b) of a senior officer this Agreement.
(b) The respective obligations of the Company, dated as of Purchasers hereunder in connection with the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditionsconditions being met:
a. The (i) the representations and warranties of the Investor Company contained in this Agreement herein shall be true true, accurate and correct complete in all material respects (other than representations that are qualified as to materiality or a Material Adverse Effect which shall be true, accurate and complete in all respects) on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties unless made as of the date hereof or as of another a specific date, in which case, such truth, accuracy and completeness shall be true and correct measured as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.
c. On the Closing Date, the Investors Date shall have duly executed and delivered to been performed;
(iii) the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with delivered the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to items set forth in Section 5(e)(52.2(a) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.this Agreement; and
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” (iv) solely with respect to the transactions contemplated by this Agreementobligation of Fir Tree to purchase Securities hereunder, without the imposition Company’s Board of any term, condition or consequence Directors shall have received an opinion letter from FBR Markets & Co. to the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for effect that the Investor’s acquisition issuance of the Securities (but not for pursuant to the conversion terms of this Agreement is fair to the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition Company from a financial point of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeview.
Appears in 2 contracts
Sources: Common Stock Subscription Agreement, Common Stock Subscription Agreement (Eco-Stim Energy Solutions, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless such representations and warranties speak only as of a specific date, in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed in all material respects;
(iii) the delivery by each Purchaser of the Companyitems required to be delivered by it at or prior to Closing as set forth in Section 2.2(b) of this Agreement; and
(iv) no statute, dated as rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the Closing Date, certifying to that facttransactions contemplated by this Agreement or any of the other Transaction Documents.
d. On (b) The respective obligations of the Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects when made and on the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless such representations and warranties speak only as of a specific date, in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed in all material respects;
c. On (iii) the delivery by the Company of the items required to be delivered by it at or prior to Closing as set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock (if any) shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable Securities at the Closing Closing; and
(vi) no statute, rule, regulation, executive order, decree, ruling or upon conversion of the Preferred Stock injunction shall have been duly authorized for listingenacted, subject to official notice entered, promulgated or endorsed by any court or governmental authority of issuance, on competent jurisdiction that prohibits the New York Stock Exchange.
c. The Board consummation of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of Agreement or any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeother Transaction Documents.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Integrity Applications, Inc.), Securities Purchase Agreement (Integrity Applications, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver applicable Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor applicable Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with each Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation applicable Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the applicable Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) as to the Second Closing., (i) the Company is current in filing of reports required by the Exchange Act, (ii) the Audits for Company’s fiscal years ended December 31, 2015 and December 31, 2016 are completed and (iii) the Common Stock is quoted for trading on OTCQB;
c. On (v) as to the Second Closing, the Company shall have acquired Bellissima Spirits LLC and BiVi Vodka LLC, on terms and conditions reasonably satisfactory to the Purchasers;
(vi) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase applicable Closing, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Iconic Brands, Inc.), Securities Purchase Agreement (Iconic Brands, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in agreements of each Purchaser under this Agreement that are required to be performed at or prior to the Closing, and Closing Date shall have been performed in all material respects;
(iii) the Investor delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement;
(iv) the Escrow Agent shall have received a certificate executed signature pages to this Agreement and the Escrow Agreement from Purchasers showing an agreement to purchase the Notes hereunder with an aggregate purchase price of up to $500,000 and the Escrow Agent shall have received an aggregate of up to $500,000 in corresponding Subscription Amounts from such Purchasers in cash.
(b) The respective obligations of a senior officer Purchaser hereunder in connection with the Closing, unless waived by such Purchaser, are subject to the following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) when made and on the Closing Date of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in agreements of the Company under this Agreement that are required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time from the date hereof prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity ; and
(vi) the Escrow Agent shall have instituted received executed signature pages to this Agreement from Purchasers showing an investigation or proceeding that could result agreement to purchase the Notes with an aggregate purchase price of up to $500,000 and the Escrow Agent shall have received an aggregate of up to $500,000 in corresponding Subscription Amounts from such a judgment, injunction, order or decreePurchasers in cash.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Be Active Holdings, Inc.), Securities Purchase Agreement (Be Active Holdings, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Investor contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, covenants and agreements of the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are is required to be performed at or prior to the Closing, and Closing Date shall have been performed; and
(iii) the delivery by the Investor shall have received a certificate of a senior officer of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(iv) The respective obligations of the Closing Date, certifying to that fact.
d. On Investor hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(v) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in all material respects all of its (b) All obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (i) The respective obligations of the Investor hereunder in connection with the Closing are subject to the following conditions being met:
(ii) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date hereof to the Closing Date, trading in the Investors Common Shares shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Registration Rights Agreement and Investor, makes it impracticable or inadvisable to purchase the Investor Agreement.
3.3. The obligation of Securities at the parties to complete Closing;) the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State Principal Market an application for the listing of the State Underlying Shares on the Principal Market, a copy of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock which shall have been duly authorized for listingprovided to the Investor, subject to official notice of issuance, on and the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation Principal Market shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5raised no objection with respect thereto;
(vi) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System no statute, rule, regulation, executive order, decree, ruling or injunction shall have issued a written determination been enacted, entered, promulgated or endorsed by any court or governmental entity of competent jurisdiction that Investor does not and will not “control” prohibits the Company or consummation of any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without hereby; and
(vii) the imposition of any term, condition or consequence Equity Conditions (as defined in the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”Note) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreemet.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Caravelle International Group), Securities Purchase Agreement (Caravelle International Group)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate been performed;
(iii) 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 a senior officer competent jurisdiction that prohibits the consummation of any of the Company, dated as transactions contemplated by the Transaction Documents; and
(iv) the delivery by each Purchaser of the Closing Date, certifying to that factitems set forth in Section 2.2(b) of this Agreement.
d. On (b) The respective obligations of the Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Coya Therapeutics, Inc.), Securities Purchase Agreement (Coya Therapeutics, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete effect the transactions contemplated by Section 2 hereof Closing are subject to the following conditions being met:
(i) the “Stock Purchase”accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) shall be conditioned on the satisfaction or waiver date of this Agreement and the Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in agreements of each Purchaser under this Agreement that are required to be performed at or prior to the Closing, and Closing Date shall have been performed in all material respects;
(iii) the Investor delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement; and
(iv) the Escrow Agent shall have received executed signature pages to this Agreement and the Escrow Agreement from at least one Purchaser showing an agreement to purchase a certificate Note and Warrants hereunder and the Escrow Agent shall have received the corresponding Subscription Amount from such Purchaser, in cash.
(b) The respective obligations of a senior officer Purchaser hereunder to effect the Closing, unless waived by such Purchaser, are subject to the following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the date of this Agreement and Closing Date of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed representations and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation warranties of the Company to complete the Stock Purchase contained herein (unless as of a specific date therein in which case they shall be conditioned on accurate as of such date);
(ii) all Required Approvals, obligations, covenants and agreements of the satisfaction Company under the Transaction Documents required to be performed or waiver obtained at or prior to the Closing Date shall have been performed or obtained;
(iii) the Escrow Agent shall have received executed signature pages to this Agreement from at least one Purchaser showing an agreement to purchase a Note and Warrants hereunder and the Escrow Agent shall have received the corresponding Subscription Amount from such Purchaser in cash;
(iv) the delivery by the Company of the following conditions:items set forth in Section 2.2(a) of this Agreement;
a. The representations and warranties of (v) there shall have been no Material Adverse Effect with respect to the Investor contained in this Agreement shall be true and correct on and as of Company since the date hereof; and
(vi) from the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Immudyne, Inc.), Securities Purchase Agreement (XpresSpa Group, Inc.)
Closing Conditions. (a) The obligation obligations of Enstar hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the parties to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company CPPIB and CPPIB LP contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or warranties (A) to the extent expressly made as of the date hereof or as of another an earlier date, in which shall be true and correct case only as of such date, and (B) for the representations and warranties in Section 3.2(c) and Section 3.3(c), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of which must be accurate in all respects on the Closing Date);
(ii) all obligations, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in agreements of CPPIB and CPPIB LP under this Agreement that are required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed in all material respects;
(iii) the delivery by (A) CPPIB of the Company, dated as items set forth in Section 2.3(b) and (B) CPPIB LP of the Closing Date, certifying to that fact.items set forth in Section 2.3(c); and
d. On (iv) the Closing Date, filing of appropriate pre-closing notices of the Company shall have duly executed and delivered Transaction to the Investor an Investor Agreement applicable regulators in substantially the form jurisdictions set forth as on Exhibit B hereto (and none of such regulators shall have asserted a right to review and/or approve the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”)Transaction.
3.2. (b) The obligation obligations of CPPIB hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Enstar contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or warranties to the extent expressly made as of the date hereof or as of another an earlier date, in which shall be true and correct case only as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in agreements of Enstar under this Agreement that are required to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listing, subject to official notice of issuance, on performed in all material respects;
(iii) the New York Stock Exchange.
c. The Board of Directors delivery by Enstar of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant items required to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable be delivered to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those CPPIB set forth in 3.3(cSection 2.3(a); and
(iv) the filing of appropriate pre-closing notices of the CPPIB Transaction to the applicable regulators in the jurisdictions set forth on Exhibit B hereto and none of such regulators shall have asserted a right to review and/or approve the CPPIB Transaction.
(c) The obligations of CPPIB LP hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the representations and warranties of Enstar contained herein (except to the extent expressly made as of an earlier date, in which case only as of such date);
(d)ii) all obligations, covenants and (e), agreements of Enstar under this Agreement required to be performed at or prior to the “Required Approvals”) Closing Date shall have been obtained or made performed in all material respects;
(iii) the delivery by Enstar of the items required to be delivered to CPPIB LP set forth in Section 2.3(a); and
(iv) the filing of appropriate pre-closing notices of the CPPIB LP Transaction to the applicable regulators in the jurisdictions set forth on Exhibit B hereto and shall be in full force and effect and all waiting periods under the Required Approvals none of such regulators shall have expired or been terminated, in each case without asserted a right to review and/or approve the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeCPPIB LP Transaction.
Appears in 2 contracts
Sources: Purchase Agreement (Enstar Group LTD), Purchase Agreement (Canada Pension Plan Investment Board)
Closing Conditions. 7.1. The obligation obligations of the parties Seller to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on perform this Agreement and its obligations hereunder are subject to the satisfaction or waiver of each of the following conditions:
3.1. The obligation of the Investor conditions at or prior to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold unless waived in the Stock Purchase, substantially in the form set forth in Schedule 3.1(awriting by Seller:
(a) to this Agreement.
b. The All representations and warranties of the Company Buyer contained herein or in this Agreement any document delivered pursuant hereto shall be true and correct on and as of the date hereof in all material respects when made and on and as of the Closing Date as if though made on and as of the Closing Date Date, and a certificate shall be delivered to Seller so confirming;
(except for any such representations or warranties made as b) Issuance of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate Consideration Shares to Seller.
(c) An executed counterpart of the chief executive officer and chief financial officer Employment Agreement by Buyer.
(d) An executed counterpart of the Company, dated as Assignment by Buyer.
7.2. The obligations of Buyer to perform this Agreement and its obligations hereunder are subject to the satisfaction of each of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed following conditions at or prior to the ClosingClosing Date, unless waived by Buyer:
(a) All covenants, agreements and obligations required by the Investor terms of this agreement to be performed by Seller, as may be required, at or before the Closing shall have received been duly and properly performed in all material respects.
(b) Receipt of a certificate of a senior officer of the Companyexecuted by Seller, dated as of the Closing Date, certifying to that factthe provisions of the Agreement have been fulfilled.
d. On (c) Receipt of a certificate of Seller, in his capacity as an officer of Kenmont dated as of the Closing Date, the Company shall have duly executed certifying (A) that true and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation complete copies of the Company to complete the Stock Purchase shall be conditioned Operating Agreement and organizational documents of Kenmont as in effect on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date are attached thereto; (B) that true, correct and complete copies of resolutions of Seller as if made on the sole member of Kenmont authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby are attached thereto; and (C) a good standing certificate of Kenmont as of the Closing Date a date within ten (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or 10) days prior to the ClosingClosing Date.
c. On (d) Seller shall use its best efforts to obtain all authorizations, consents, orders and approvals of Governmental Authorities and officials that may be or become necessary for their execution and delivery of, and the Closing Dateperformance of their respective obligations pursuant to, the Investors shall have duly executed and delivered to the Company each of the Registration Rights this Agreement and the Investor will cooperate fully with each other in promptly seeking to obtain all such authorizations, consents, orders and approvals.
(e) An executed Lock-Up Agreement.
3.3. The obligation (f) An executed counterpart of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver Employment Agreement by both the Company and the Investor Seller.
(g) An executed counterpart of the following conditionsAssignment by Seller.
a. (h) The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock ExchangeAmended Operating Agreement.
c. (i) The Board completed Investor Questionnaire.
(j) Such other instruments of Directors transfer and assignment as shall be necessary to transfer, assign, convey and vest in Buyer all of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act Seller’s right, title and interest in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, Membership Interests as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment provided in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Equity Exchange Agreement (Blue Earth, Inc.), Equity Exchange Agreement (Blue Earth, Inc.)
Closing Conditions. (a) The obligation of the parties Company hereunder to complete issue and sell the transactions contemplated by Section 2 hereof (Shares and the “Stock Purchase”) shall be conditioned on Warrants to the satisfaction Purchaser at the Closing is subject to the satisfaction, at or waiver before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Purchaser with prior written notice thereof:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of made by the Company contained Purchaser in this Agreement Section 3.2 hereof qualified as to materiality shall be true and correct at all times prior to and on and the Closing Date, except to the extent any such representation or warranty expressly speaks as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date), and, the representations and warranties made by the Purchaser in Section 3.2 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date;
(ii) all obligations, covenants and agreements of the Purchaser under this Agreement required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The obligation of Purchaser hereunder to purchase the Shares and the Warrant at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for each Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) the representations and warranties of the Company that are qualified by a materiality standard or Material Adverse Effect, shall have been true and correct when made and shall be true and correct as of the Closing Date and the representations and warranties of the Company that are not qualified by a materiality standard or Material Adverse Effect, shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, and the Investor Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date, and the Purchaser shall have received a certificate of certificate, executed by the chief executive officer and chief financial officer Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing Date, substantially in to the form foregoing effect;
(ii) the delivery by the Company of the items set forth in Schedule 3.1(bSection 2.2(a) to of this Agreement;
(iii) the Common Stock (I) shall be designated for quotation or listed on the Principal Market (as defined in the Warrant) and shall not have been suspended, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.by the Commission or the Principal Market from trading on the Principal Market;
d. On the Closing Date, (iv) the Company shall have duly executed obtained all governmental, regulatory or third party consents and delivered to approvals, if any, necessary for the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation sale of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver Securities, including without limitation, those required by the Company of the following conditions:Principal Market;
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations v) no statute, rule, regulation, executive order, decree, ruling or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock injunction shall have been duly authorized for listingenacted, subject to official notice entered, promulgated or endorsed by any court or governmental authority of issuance, on competent jurisdiction that prohibits the New York Stock Exchange.
c. The Board consummation of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by the Transaction Documents;
(vi) since the date of execution of this Agreement, without no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect; and
(vii) the imposition Company shall have filed with Nasdaq a Notification Form: Listing of any termAdditional Shares for the listing of the Shares and the Warrant Shares, condition or consequence the acceptance a copy of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under available to the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreePurchaser.
Appears in 2 contracts
Sources: Subscription Agreement (ARCA Biopharma, Inc.), Subscription Agreement (ARCA Biopharma, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed;
(iii) the Merger shall be in all ways positioned to be consummated and all parties to the Merger Agreement shall be ready, willing and able to so consummate (including all closing conditions under the Merger Agreement having been duly satisfied or waived); and
(iv) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the Merger shall be in all ways positioned to be consummated and all parties to the Merger Agreement shall be ready, willing and able to so consummate (including all closing conditions under the Merger Agreement having been duly satisfied or waived);
(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, trading in the Investors common stock of Parent shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Qualigen Therapeutics, Inc.), Securities Purchase Agreement (Ritter Pharmaceuticals Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions being met; provided that the Company, in its sole discretion, may waive any and all such conditions:
3.1. The obligation (i) the accuracy in all material respects when made and on the Closing Date of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true herein;
(ii) all obligations, covenants and correct on and as agreements of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchasers required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by the Purchasers of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met; provided that each Purchaser, in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) its sole discretion, may waive any and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following all such conditions:
a. The (i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Investor Company contained in this Agreement shall be true herein;
(ii) all obligations, covenants and correct on and as agreements of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) all holders of secured Indebtedness of the Company shall have agreed to exchange such Indebtedness for Preferred Stock as payment in full of any obligations thereunder or agree to be paid off for cash at the Closing as set forth on Schedule 4.9 (and in both cases the Company shall have received duly authorized pay-off letters from all such holders); and
(vi) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Company Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties each Purchaser, makes it impracticable or inadvisable to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware purchase the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock ExchangeClosing.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Crestview Capital Master LLC), Securities Purchase Agreement (Chembio Diagnostics, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder with respect to complete any Purchaser in connection with the transactions contemplated by Section 2 hereof Closing are subject to the following conditions being met:
(i) the “Stock Purchase”) accuracy in all material respects on such Closing Date of the representations and warranties of such Purchaser contained herein, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be conditioned on accurate in all material respects as of such earlier date;
(ii) all obligations, covenants and agreements of such Purchaser required to be performed at or prior to such Closing Date shall have been performed; and
(iii) the satisfaction or waiver delivery by such Purchaser of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form items set forth in Schedule 3.1(aSection 2.2(b) to of this Agreement.
b. (b) The obligations of each Purchaser hereunder in connection with the Closing are subject to the following conditions being met, unless waived in the sole and absolute discretion of such Purchaser:
(i) the accuracy in all respects on such Closing Date of the representations and warranties of the Company contained herein, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be accurate in all respects as of such earlier date;
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to such Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) [Reserved]; and
(v) the aggregate Subscription Amount of all Purchasers hereunder shall be no less than $1,000,000.
(c) The obligations of each Purchaser hereunder to make any disbursement under a Note subsequent to the initial disbursement made on the Closing Date are subject to the following conditions being met, unless waived in the sole and absolute discretion of such Purchaser:
(i) the accuracy in all respects on the date of such disbursement of the representations and warranties of the Company contained herein, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be accurate in all respects as of such earlier date;
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the date of such disbursement shall have been performed;
(iii) there shall have been no Material Adverse Effect with respect to the Company;
(iv) [Reserved];
(v) the delivery of the Secretary’s Certificate; and
(vi) the delivery of a certificate duly executed by an officer of the Company certifying as to the following matters:
(a) the accuracy in all respects on such disbursement date of the representations and warranties of the Company contained in this Agreement Agreement, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all respects as of such earlier date); and
(b) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are required to be performed at or prior to such disbursement date under this Agreement have been performed. Notwithstanding the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Dateforegoing, the Company shall have duly executed and delivered obligation of each Purchaser to fund any disbursement under a Note subsequent to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and initial disbursement shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreePurchaser’s sole discretion.
Appears in 2 contracts
Sources: Securities Purchase Agreement (SANUWAVE Health, Inc.), Securities Purchase Agreement (SANUWAVE Health, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder to complete effect a Closing are subject to the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of a Purchaser hereunder to effect the Closing, and unless waived by such Purchaser, are subject to the Investor shall have received a certificate of a senior officer following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers therein) on the Closing Date of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the Escrow Agent shall have received executed signature pages to this Agreement with respect to the Subscription Amounts for which such Closing is to occur;
(iv) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) from the date hereof to the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act trading in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment securities in the United States generally as reported by Bloomberg L.P. shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained suspended or made and limited, nor shall be a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in full force and its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Players Network), Securities Purchase Agreement (Greenwood Hall, Inc.)
Closing Conditions. (a) The obligation of Seller to sell, transfer and assign the parties Shares to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on Buyer hereunder is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing:
3.1. The obligation of (i) the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained Buyer in this Agreement Section 5 hereof shall be true and correct on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on at and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), ;
(ii) Buyer shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Investor Closing Date; and
(iii) Seller shall have received a certificate of the chief executive officer Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and chief financial officer complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the consummation of the Companytransactions contemplated hereby, dated and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby.
(b) The obligation of Buyer to purchase the Shares from Seller is subject to the satisfaction of the following conditions as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The (i) the representations and warranties of the Investor contained Seller in this Agreement Section 4 shall be true and correct on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on at and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).;
b. The Investor (ii) Seller shall have performed and complied in all material respects with all of its covenants agreements and obligations in conditions required by this Agreement that are to be performed at or complied with by it prior to the Closing.
c. On or on the Closing Date, the Investors ; and
(iii) Buyer shall have duly executed and delivered to the Company each received a certificate of the Registration Rights Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the Investor Agreement.
3.3. The obligation consummation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations withhereby, and notifications to, that all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be such resolutions are in full force and effect and are all waiting periods under the Required Approvals shall have expired or been terminated, resolutions adopted in each case without connection with the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreetransactions contemplated hereby.]
Appears in 2 contracts
Sources: Unit Purchase Agreement (SurgePays, Inc.), Unit Purchase Agreement (SurgePays, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) accuracy in all material respects on the Closing Date of the representations and warranties of the Purchasers contained herein (except for representations and warranties that speak as of a specified date which shall be conditioned on accurate in all material respects as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed or complied with at or prior to the satisfaction Closing Date shall have been performed or waiver complied with in all material respects; and
(iii) the delivery by each Purchaser of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form items set forth in Schedule 3.1(aSection 2.2(b) to of this Agreement.
b. (b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or and warranties made that speak as of the a specified date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are required to be performed or complied with at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer of been performed or complied with in all material respects;
(iii) the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver delivery by the Company of the following conditions:items set forth in Section 2.2(a) of this Agreement;
a. The representations and warranties (iv) the Company shall have taken appropriate action to address the items noted on Schedule 2.3(b)(iv);
(v) the Registration Statement shall have been declared effective by the Commission;
(vi) the Company shall have received executed signature pages indicating an aggregate Purchasers’ Subscription Amounts of not less than $5,600,000;
(vii) there shall have been no Material Adverse Effect with respect to the Investor contained in this Agreement shall be true and correct on and as of Company since the date hereof; and
(viii) from the date hereof and on and as of to the Closing Date as if made on and as of Date, trading in the Closing Date Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market (except for any such representations or warranties made as suspension of trading of limited duration agreed to by the date hereof or as of another dateCompany, which suspension shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or terminated prior to the Closing.
c. On ), and, at any time prior to the Closing Date, the Investors trading in securities generally as reported by Bloomberg L.P. shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation or minimum prices shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained established on securities whose trades are reported by such service, or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of on any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeTrading Market.
Appears in 2 contracts
Sources: Securities Purchase Agreement (NMT Medical Inc), Securities Purchase Agreement (NMT Medical Inc)
Closing Conditions. The a. Purchaser’s obligation of the parties to complete the transactions contemplated by Section 2 hereof (Closing and to the “Stock Purchase”) shall be conditioned on deliver the Purchase Price and subject to the satisfaction or waiver of each of the following conditions:
3.1i. At or prior to the Closing, Seller must have delivered or caused to be delivered to Purchaser the following:
1. The obligation This Agreement duly executed by Seller;
2. Documentation sufficient to evidence the sale, conveyance, and transfer of the Investor Shares to complete the Stock Purchase shall be conditioned on the satisfaction or waiver Purchaser;
3. Resolutions duly adopted by the Investor Board of Directors of Seller approving the following conditions:execution, delivery, and performance of this Agreement and all exhibits and schedules hereto and all other documents, instruments and writings required pursuant to this Agreement (the “Transaction Documents”);
a. The Investor shall have received an opinion4. An instruction letter signed by Seller’s officer addressed to Company’s transfer agent of record, dated instructing the Closing Datetransfer agent to allocate the Shares and issue stock certificates pursuant to a schedule provided by Purchaser on or prior to Closing.
5. All corporate records, from Wachtellboard minutes and resolutions, Liptontax and financial records, ▇▇▇▇▇ & ▇▇▇▇agreements, and/or another nationally recognized law firm, seals and any other information or documents reasonably requested by Purchaser’s representatives with respect to Seller and Company; and
6. Such other documents as counsel to the Company, as to the validity of the Securities being sold Purchaser may reasonably request in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to connection with this Agreement.
b. The ii. Seller’s representations and warranties of the Company herein contained in this Agreement shall be true and correct on and as of the date hereof and on and as of in all material respects at the Closing Date with the same effect as if though made on and as of the Closing Date (except for any at such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company time. Seller shall have performed in all material respects all of its obligations and complied in all material respects with all covenants and obligations in conditions required by this Agreement that are to be performed or complied with by them at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On iii. At the Closing DateClosing, the Seller or Company shall have duly executed and delivered no liabilities, debts, payables (contingent or otherwise), or tax obligations. Additionally, no material changes to Seller’s business or financial condition shall have occurred since the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor date of this Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2iv. The At the Closing, Company will be current in all SEC filings.
b. Seller’s obligation of the Company to complete the Stock Purchase Closing pursuant to this Agreement shall be conditioned on subject to the satisfaction or waiver by the Company of each of the following conditions:
a. i. At or prior to the Closing, Purchaser must have delivered or caused to be delivered to Seller the following:
1. This Agreement duly executed by Purchaser;
2. The Purchase Price; and
3. Such other documentation as Seller may reasonably request in connection with the transaction contemplated hereby.
ii. The representations and warranties of the Investor contained Purchaser in this Agreement shall be true and correct on and as of the date hereof and on and as of in all material respects at the Closing Date with the same effect as if though made on and as of the Closing Date (except for any at such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor time. Purchaser shall have performed in all material respects all of its obligations and complied in all material respects with all covenants and obligations in conditions required by this Agreement that are to be performed or complied with at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cloud Security Corp.), Stock Purchase Agreement (Cloud Security Corp.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the ClosingClosing Date shall have been performed; and
(iii) The Company shall have filed, if applicable, a listing of additional shares notification with the NYSE American in connection with the sale and issuance of the Shares and Conversion Shares, and the Investor shall have received a certificate of a senior officer no objections thereto from the NYSE American; and
(iv) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and herein (unless as of the a specific date hereof therein) and on and as a certificate of the Closing Date as if made on Company’s Chief Executive Officer or Chief Financial Officer attesting to the foregoing;
(ii) all obligations, covenants and as agreements of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Glowpoint, Inc.), Securities Purchase Agreement (Glowpoint, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met or waived by Section 2 hereof the Company:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any with respect to representations and warranties which relate to a specific date, in which case such representations or and warranties made as of the date hereof or as of another date, which shall continue to be true and correct materially accurate as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchasers required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed;
(iii) the delivery by the Purchasers of the Companyitems set forth in Section 2.2(b) of this Agreement;
(iv) no statute, dated as rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the Closing Date, certifying to that fact.transactions contemplated by the Transaction Documents; and
d. On the Closing Date, (v) the Company shall have duly executed obtained in a timely fashion any and delivered all consents, permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the Shares, all of which shall be and remain so long as necessary in full force and effect.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the Investor an Investor Agreement following conditions being met or waived by each Purchaser as to itself:
(i) the accuracy in substantially all material respects on the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any with respect to representations and warranties which relate to a specific date, in which case such representations or and warranties made as of the date hereof or as of another date, which shall continue to be true and correct materially accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement and a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or its Chief Financial Officer, certifying to the fulfillment of the conditions specified in Sections 2.3(b)(i) and (ii);
(iv) on the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties Closing Date), and, at any time prior to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or upon conversion of limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the Preferred Stock United States or New York State authorities;
(v) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been duly authorized for listingenacted, subject to official notice entered, promulgated or endorsed by any court or governmental authority of issuance, on competent jurisdiction that prohibits the New York Stock Exchange.
c. The Board consummation of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreementthe Transaction Documents; and
(vi) the Company shall have obtained in a timely fashion any and all consents, without permits, approvals, registrations and waivers necessary for consummation of the imposition purchase and sale of any termthe Shares, condition or consequence the acceptance all of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be and remain so long as necessary in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeeffect.
Appears in 2 contracts
Sources: Share Purchase Agreement (Youngevity International, Inc.), Share Purchase Agreement (Synthetic Biologics, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Initial Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Initial Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or warranties to the extent expressly made as of the date hereof or as of another a specific date, in which case they shall be true and correct accurate in all material respects as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Initial Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form items set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”Section 2.2(b).
3.2. (b) The obligation respective obligations of the Company Purchasers hereunder in connection with the Initial Closing are subject to complete the Stock Purchase shall be conditioned following conditions being met:
(i) the accuracy in all material respects when made and on the satisfaction or waiver by the Company Initial Closing Date of the following conditions:
a. The representations and warranties of the Investor Company and its Significant Subsidiaries (including but not limited to PODC) contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date herein (except for any such representations or warranties to the extent expressly made as of the date hereof or as of another a specific date, in which case they shall be true and correct accurate in all material respects as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company and its Significant Subsidiaries required to be performed at or prior to the Closing.
c. On the Initial Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listing, subject to official notice of issuance, on performed;
(iii) the New York Stock Exchange.
c. The Board of Directors delivery by the Company of the Federal Deposit Insurance Corporation items set forth in Section 2.2(a);
(iv) there shall have granted a written “cross guarantee waiver” pursuant been no Material Adverse Effect with respect to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes Significant Subsidiaries since the date hereof;
(v) the Company shall have delivered a certificate, executed on behalf of the U.S. Bank Holding Company Act of 1956by its Secretary, dated as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in Initial Closing Date, certifying the United States shall have issued a “clearance letter” with respect to resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this AgreementAgreement and the other Transaction Documents, without certifying the imposition current versions of the Company’s certificate or articles of incorporation and bylaws and certifying as to the signatures and authority of Persons signing the Transaction Documents and related documents on behalf of the Company;
(vi) a first priority security interest in substantially all of the assets of the Company and each Subsidiary (including but not limited to PODC, but excluding the Excluded Subsidiaries) securing the Company’s and each Subsidiary’s obligations under the Transaction Documents shall have been created and perfected in favor of the Purchasers; and
(vii) from the date hereof to the Initial Closing Date, trading in the Common Stock shall not have been suspended or halted by the Principal Market or the Commission and, at any termtime prior to the Closing Date, condition trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or consequence limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the acceptance Principal Market, nor shall a banking moratorium have been declared either by United States or New York State authorities nor shall there have occurred any material outbreak or escalation of which would constitute a Substantial Detrimenthostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Debentures at the Initial Closing.
f. (c) The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition obligations of the Securities Company hereunder in connection with the Delayed Draw Closing are subject to the following conditions being met:
(but not for i) the conversion accuracy in all material respects on the Delayed Draw Closing Date of the Preferred Stock into Common Stockrepresentations and warranties of the Purchasers contained herein (except to the extent expressly made as of a specific date, in which case they shall be accurate in all material respects as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Delayed Draw Closing Date shall have been performed; and
(collectively, with those iii) the delivery by each Purchaser of the items set forth in 3.3(cSection 2.2(d), .
(d) The respective obligations of the Purchasers hereunder in connection with the Delayed Draw Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Delayed Draw Closing Date of the representations and warranties of the Company and its Significant Subsidiaries (including but not limited to PODC) contained herein (except to the extent expressly made as of a specific date, in which case they shall be accurate in all material respects as of such date);
(ii) all obligations, covenants and agreements of the Company and its Significant Subsidiaries required to be performed at or prior to the Delayed Draw Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(c);
(iv) there shall have been no Material Adverse Effect with respect to the Company or any of its Significant Subsidiaries since the Initial Closing Date;
(v) Since the Initial Closing Date, trading in the Common Stock shall not have been suspended or halted by the Principal Market or the Commission for 15 Trading Days or more (which need not be consecutive) during any 12 month period and, at any time prior to the Delayed Draw Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, for 15 Trading Days or more (which need not be consecutive) during any 12 month period, nor shall a banking moratorium have been declared either by United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Debentures at the Delayed Draw Closing;
(vi) there have been no Events of Default (as defined in the Debentures) pursuant to the Initial Debentures which has occurred and are continuing;
(vii) the Company shall have not repaid the principal amount of the Initial Debentures; and
(viii) within 15 months of the Initial Closing Date, either of the following conditions have been satisfied during such 15 month period: (x) (i) the VWAP of the Common Stock has been equal to or greater than $4.20 per share subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the Initial Closing Date) for thirty (30) consecutive Trading Days and (ii) the Equity Conditions are satisfied with respect to the Initial Debentures on each of (1) the Delayed Draw Closing Date and (2) the immediately preceding thirty (30) consecutive Trading Days; or (y) Free Cash Flow (A) been equal to or greater to $3,000,000 for three consecutive fiscal quarters, and (e), the “Required Approvals”B) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, has increased in each case without of the imposition of any term, condition or consequence foregoing quarters from the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeimmediately preceding fiscal quarter.
Appears in 2 contracts
Sources: Securities Purchase Agreement (PodcastOne, Inc.), Securities Purchase Agreement (LiveOne, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) accuracy in all material respects on the Closing Date of the representations and warranties of the Holder contained herein (unless as of a specific date therein in which case they shall be conditioned on the satisfaction or waiver accurate as of such date);
(ii) all obligations, covenants and agreements of the following conditions:Holder required to be performed at or prior to the Closing Date shall have been performed; and
3.1. The obligation (iii) the delivery by the Holder of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form items set forth in Schedule 3.1(aSection 2.2(b) to of this Agreement.
b. (b) The respective obligations of the Holder hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained in this Agreement shall be true and correct on and herein (unless as of a specific date therein);
(ii) all obligations, covenants and agreements of the date hereof and on and as of Company required to be performed at or prior to the Closing Date as if made on and as shall have been performed;
(iii) the delivery by the Company of the Closing Date items set forth in Section 2.2(a) of this Agreement;
(except for any such representations or warranties made as iv) the Company shall have delivered a Certificate, executed on behalf of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the CompanyCompany by its Secretary, dated as of the Closing Date, substantially in certifying the form set forth in Schedule 3.1(b) to resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this AgreementAgreement and the other Transaction Documents and the Exchange, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to that fact.the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company; and
c. The (v) the Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closingdelivered a Certificate, and the Investor shall have received a certificate of a senior officer executed on behalf of the CompanyCompany by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, fulfillment of the Company shall have duly executed and delivered to the Investor an Investor Agreement conditions specified in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”this Section 2.3(b).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Securities Exchange Agreement (ADVANCED MEDICAL ISOTOPE Corp), Securities Exchange Agreement (ADVANCED MEDICAL ISOTOPE Corp)
Closing Conditions. The obligation of the parties (a) Purchaser’s obligations to complete close the transactions contemplated by Section 2 hereof (the “Stock Purchase”) described in this Agreement shall be conditioned on subject to the satisfaction satisfaction, at or waiver prior to Closing, of the following conditions:
3.1. The obligation conditions precedent: (i) each of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company contained made by Seller in this Agreement shall be true and correct on and in all material respects as of the date hereof and on and as Closing; (ii) each of the Closing Date as if made on covenants and as obligations of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor Seller in this Agreement shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have been performed in all material respects all respects; and (iii) the Title Company shall have unconditionally committed to issue to Purchaser an owner’s policy of its covenants and title insurance insuring good, marketable, fee simple title interest in the Purchaser, with gap coverage from Seller from the Closing through the date of recording, subject only to the Permitted Exceptions (the “Title Policy”).
(b) Seller’s obligations to close the transactions described in this Agreement that are shall be subject to be performed the satisfaction, at or prior to the Closing, and the Investor shall have received a certificate of a senior officer of the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The conditions precedent: (i) each of the representations and warranties of the Investor contained made by Purchaser in this Agreement shall be true and correct on and in all material respects as of the date hereof and on and as Closing; (ii) each of the Closing Date as if made on covenants and as obligations of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor Purchaser in this Agreement shall have been performed in all material respects all respects; and (iii) Licensor shall have approved of Purchaser or its covenants designee as a franchisee of the Hotel and obligations shall have entered into a new franchise agreement with Purchaser or shall have agreed with Purchaser on the terms of an assignment of the Existing Franchise Agreement; provided that, subject to Purchaser having submitted a completed FDD to the Licensor by December 6, 2024, if Licensor is not prepared to issue a new franchise agreement to Purchaser at or immediately following the Closing, then Purchaser shall have the right to extend the Closing Date by up to ten (10) days to satisfy the condition in this Section 11.12(b)(iii).
(c) If any of the closing conditions in favor of Purchaser or Seller are not satisfied at Closing, then the party in whose favor the condition runs shall have the right to: (1) terminate this Agreement that are by providing written notice to the other party, in which case the E▇▇▇▇▇▇ Money shall be performed disbursed to Purchaser (unless the failure of the condition is a result of a Purchaser’s Default, in which event Seller shall have the remedies for a Purchaser’s Default set forth in Section 12.1 hereof), and the parties shall have no further rights or obligations under this Agreement, except for those which expressly survive such termination, or (2) waive any of the closing conditions at or prior to the Closing.
c. On ; provided, however, that neither party shall be deemed to have waived a failure of a closing condition unless the Closing Date, occurs or such has provided the Investors other party with written notice of such waiver prior to Closing. Each parties’ rights and remedies under this Section 11.12 shall have duly executed not be exclusive of any other rights and delivered to the Company each remedies of the Registration Rights Agreement and the Investor such party under this Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Moody National REIT II, Inc.), Purchase and Sale Agreement (Moody National REIT II, Inc.)
Closing Conditions. The It shall be a condition precedent to Purchaser’s obligation to proceed to the Closing that: (a) each of the parties to complete the transactions contemplated by Section 2 hereof (the “Stock Purchase”) shall be conditioned on the satisfaction or waiver of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form representations and warranties set forth in Schedule 3.1(a) to this Agreement.
b. The representations Agreement and warranties of in the Company contained in this Agreement Disclosure Letter made by Sellers shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated in all material respects as of the Closing Date, substantially in ; (b) Sellers have delivered to the form Title Company all of the items set forth in Schedule 3.1(bSection 4.1; (c) Sellers have delivered to this AgreementPurchaser (i) all of the Estoppel Certificates (as defined in the Company Disclosure Letter) for the Required Tenants (as defined in the Company Disclosure Letter) pursuant to the terms of Section 8.1 and the Company Disclosure Letter, certifying and (ii) all of the Property Certificates (as defined in the Company Disclosure Letter) and Seller Declaration Estoppel Certificates (as defined in the Company Disclosure Letter), if any, required under Section 8.3 above and the Company Disclosure Letter; (d) the Title Issuer is prepared to that fact.
c. The Company issue the Owner’s Title Policy to Purchaser, subject only receipt of payment at Closing, and (d) Sellers shall have performed in satisfied all material respects all of its covenants other conditions and obligations in under this Agreement that are required to be performed by Sellers at or prior to the Closing, and . It shall be a condition precedent to Seller’s obligation to proceed to the Investor shall have received a certificate of a senior officer Closing that: (i) each of the Company, dated representations and warranties set forth in this Agreement made by Purchaser shall be true and correct in all material respects as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and ; (ii) Purchaser has delivered to the Investor an Investor Agreement in substantially Title Company all of the form items set forth as Exhibit B hereto in Section 4.2; and (the “Investor Agreement”iii) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date).
b. The Investor Purchaser shall have performed in all material respects all of its covenants and obligations in under this Agreement that are required to be performed by Purchaser at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 2 contracts
Sources: Real Estate Sale Agreement, Real Estate Sale Agreement (Equity Commonwealth)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met or satisfied contemporaneously with the Closing:
(i) the expiration or early termination of the applicable waiting period(s) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “Stock PurchaseHSR Act”), if required for, and in connection with, the Conversion Transactions;
(ii) shall be conditioned the accuracy in all material respects on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation representations and warranties of the Investor to complete the Stock Purchase contained herein (unless as of specified date therein, in which case they shall be conditioned on accurate as of such date);
(iii) all obligations, covenants and agreements of the satisfaction Investor required to be performed hereunder at or waiver prior to the Closing Date shall have been performed (other than immaterial instances of noncompliance);
(iv) the delivery (or evidence of such delivery) by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form items set forth in Schedule 3.1(aSection 2.3(b); and
(v) the conditions to this Agreementthe Merger contained in Article 6 of the Merger Agreement shall have been satisfied or waived (other than those conditions that by their nature shall be satisfied at or immediately after the Effective Time (provided that such conditions are then capable of being satisfied)).
b. (b) The obligations of the Investor hereunder in connection with the Closing are subject to the following conditions being met or satisfied contemporaneously with the Closing:
(i) the expiration or early termination of the applicable waiting period(s) under the HSR Act, if required for, and in connection with, the Conversion Transactions;
(ii) the representations and warranties of the Company contained in this Agreement Article III hereof (i) qualified as to or by Material Adverse Effect shall be true and correct on and as of the date hereof and on and in all respects as of the Closing Date as if made on and anew as of the Closing Date such date (except for to the extent any such representations or and warranties made expressly relate to an earlier date (in which case as of the date hereof such earlier date)) and (ii) not qualified as to or as of another date, which by Material Adverse Effect shall be true and correct as of the Closing Date (without giving effect to any “material,” “materiality” or similar phrases) as if made anew as of such date (except to the extent any such representations and warranties expressly relate to an earlier date (in which case as of such earlier date));
(iii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are required to be performed hereunder at or prior to the Closing, and the Investor Closing Date shall have received a certificate been performed (other than immaterial instances of a senior officer of non-compliance);
(iv) the Company, dated as of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver delivery by the Company of the following conditions:items set forth in Section 2.3(a) of this Conversion Agreement;
a. The representations and warranties (v) the delivery by Akebia of the item set forth in Section 2.3(c) of this Conversion Agreement; and
(vi) the conditions to the Merger contained in Article 6 of the Merger Agreement shall have been satisfied or waived, without giving effect to any waivers by the Company that, in any material respect, amend, waive or alter the terms of the Merger Agreement in a manner adverse to the Investor without the consent of the Investor contained in this Agreement (other than those conditions that by their nature shall be true and correct on and as satisfied at or immediately after the Effective Time (provided that such conditions are then capable of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such datebeing satisfied)).
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 1 contract
Sources: Notes Conversion Agreement (Keryx Biopharmaceuticals Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with each Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date for such Closing of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing Date for such Closing shall have been performed;
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement;
(iv) the specified Purchaser’s Subscription Amount being equal to the Purchase Price due and payable at such Closing; and
(v) with respect to the Subsequent Closing, and the Investor shall have received a certificate of a senior officer initial Registration Statement has been declared effective by the Commission.
(b) The respective obligations of the CompanyPurchasers hereunder in connection with each Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, dated as to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date for such Closing of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing Date for such Closing shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof and no existing event which, with the passage of time or the giving of notice, would constitute an Event of Default;
(v) from the date hereof to the Closing Date for such Closing.
c. On , trading in the Common Stock shall not have been suspended by the Commission or the Company’s Principal Trading Market and, at any time prior to such Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the Investors United States or New York State authorities nor shall there have duly executed and delivered occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at such Closing;
(vi) the Company each meets the current public information requirements under Rule 144 in respect of the Registration Rights Agreement Conversion Shares and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The any other shares of Common Stock issuable at under the Closing Notes and the Warrants;
(vii) any other conditions contained herein or upon conversion the other Transaction Documents, including those set forth in Section 2.2;
(viii) the Company has submitted a Listing of the Preferred Stock shall have been duly authorized for listing, subject Additional Shares Notification Form with The Nasdaq Capital Market with respect to official notice each issuance of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” Securities pursuant to Section 5(e)(5this Agreement;
(ix) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e)Subsequent Closing, the “Required Approvals”) shall have initial Registration Statement has been obtained or made and shall be in full force and effect and all waiting periods under declared effective by the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decreeCommission.
Appears in 1 contract
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver date hereof and on the Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, Closing Date shall have been performed;
(iii) all conditions to the Merger Agreement shall have been met and the Investor consummation of the transactions contemplated by the Merger Agreement shall have received a certificate of a senior officer occurred;
(iv) Shareholder Approval shall have been obtained and deemed effective; and
(v) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the “Investor Agreement”) date hereof and a Registration Rights Agreement in substantially on the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) Shareholder Approval shall have been obtained and deemed effective;
(vi) all conditions to the Merger Agreement shall have been met and the consummation of the transactions contemplated by the Merger Agreement shall have occurred;
(vii) the Registration Statement shall have been declared effective by the Commission for the resale of all of the Underlying Shares by the Purchasers; and
(viii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect occurred any material outbreak or escalation of hostilities or other national or international calamity (excluding the COVID-19 pandemic) of such magnitude in its effect on, or any material adverse change in, any financial market which makes it impracticable or inadvisable to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of purchase the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 1 contract
Sources: Securities Purchase Agreement (Communications Systems Inc)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the ClosingClosing Date shall have been performed;
(iii) the Company shall have obtained approval by its stockholders of the issuance of the Shares and the Warrant Shares as contemplated in this Agreement pursuant to the rules of NASDAQ and the Company shall have filed, if applicable, a listing of additional shares notification with the NASDAQ in connection with the sale and issuance of the Shares and Warrant Shares, and the Investor shall have received a certificate no objections thereto from the NASDAQ;
(iv) the execution and closing of a senior officer that certain Agreement and Plan of the CompanyMerger, dated as of July 25, 2017, by and among Cooltech Holding Corp., InfoSonics Corporation and InfoSonics Acquisition Sub, Inc.; and
(v) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing Dateare subject to the following conditions being met:
(i) the accuracy in all material respects (or, certifying to that fact.
d. On the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing. For the avoidance of doubt, the Purchasers acknowledge and agree that, upon the Purchasers’ funding of the Registration Rights Agreement and Subscription Amount into the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also Escrow Account, such subscriptions will be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not irrevocable and will not “control” be returned to the Purchasers unless the Company or any of its subsidiaries for purposes of fails to satisfy the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those Closing Conditions set forth in 3.3(c)Section 2.2(b) by December 31, (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree2017.
Appears in 1 contract
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchaser contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, covenants and the Investor shall have received a certificate agreements of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by the Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchaser hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (i) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(ii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iii) Immediately following the Closing., the Board of Directors shall be comprised of eight (8) members, one (1) of whom shall be designated by the Purchaser;
c. On (iv) the Required Approvals and all the third party consents and approvals and other actions that are required to be taken by the Company in connection with the issuance and sale of the ADSs and Warrants shall have been completed to the Purchaser’s satisfaction;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vi) at any time from the date hereof to the Closing Date, (i) trading in the Investors ADSs and the Ordinary Shares shall not have been suspended by the Commission, any other applicable regulatory authority or applicable Trading Market, and no initiation or threatening in writing of any proceedings for suspension or delisting of the ADSs or Ordinary Shares shall have duly executed occurred; (ii) trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock (iii) no banking moratorium shall have been duly authorized for listingdeclared either by the United States, subject to official notice of issuance, on the New York Stock ExchangeState or Israeli authorities.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 1 contract
Closing Conditions. The obligation exchange of the Existing Securities for the Securities pursuant to this Exchange Agreement is subject to the timely satisfaction of the following conditions precedent:
(a) On the Exchange Date, the parties to complete this Exchange Agreement and the transactions contemplated New Indentures shall have executed and delivered the Operative Documents to the other parties thereto, in form and substance acceptable to each Holder and the Company (acceptance of such form and substance to be evidenced by Section 2 hereof such Holder’s or the Company’s execution and delivery thereof).
(b) The representations and warranties contained in this Exchange Agreement, and the statements of the Company and the Holders made in any certificates pursuant to this Exchange Agreement, shall be accurate as of the Exchange Date.
(c) (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ and ▇▇▇▇ LLP and Miles and Stockbridge P.C., counsel for the Company (collectively, the “Stock PurchaseCompany Counsel”) ), shall be conditioned on the satisfaction or waiver each have delivered an opinion, dated as of the following conditions:
3.1Exchange Date, addressed to the Holders and each New Trustee, in substantially the form set out in Annex A-I hereto, and (ii) the Company shall have furnished to the Holders the opinion of the Company’s General Counsel or a certificate signed by the Company’s Chief Executive Officer, President, Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated as of the Exchange Date, addressed to the Holders, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Company and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Holders) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinions. The obligation Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinions shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the Investor to complete ABA Section of Business Law (1991).
(d) The Holders shall have received opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, special tax counsel for the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor Company, dated as of the following conditions:Exchange Date, addressed to the Holders, in substantially the form set forth in Annex B-1 and Annex B-2 hereto.
a. (e) The Investor Holders of the New Tranche III Securities shall have received an opinionopinion of ▇▇▇▇▇▇▇ & ▇▇▇, special counsel to the Tranche III Trustee, dated as of the Closing Exchange Date, from Wachtelladdressed to the Holders, Liptonin substantially the form set forth in Annex C hereto.
(f) The Holders of the New Tranche I Securities and New Tranche II Securities shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel to the Tranche I Trustee and the Tranche II Trustee, dated as of the Exchange Date, addressed to such Holders, in substantially the form set forth in Annex D hereto.
(g) The Holders of the New Tranche IV Securities and New Tranche V Securities shall have received an opinion of Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, and/or another nationally recognized law firm, as special counsel to the CompanyTranche IV Trustee and the Tranche V Trustee, dated as to the validity of the Securities being sold Exchange Date, addressed to such Holders, in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this AgreementAnnex E hereto.
b. (h) The Company shall have furnished to the Holders a certificate of the Company, signed by the Chief Executive Officer, President or any Vice President and Chief Financial Officer or Treasurer of the Company, dated as of the Exchange Date, that the representations and warranties of the Company contained in this Exchange Agreement shall be are true and correct on and as of the date hereof and on and as of Exchange Date with the Closing Date same effect as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date)Exchange Date, and the Investor shall have received a certificate Company has complied with all of the chief executive officer agreements in this Exchange Agreement and chief financial officer satisfied all of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations conditions in this Exchange Agreement that are to be performed or satisfied by it at or prior to the ClosingExchange Date.
(i) Subsequent to the execution of this Exchange Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or assets of the Company and its subsidiaries, taken as a whole, whether or not occurring in the Investor ordinary course of business, the effect of which is, in the Holders’ judgment, so material and adverse as to make it impractical or inadvisable to proceed with the exchange of the Existing Securities for the Securities.
(j) The exchange of the Existing Securities for the Securities as described in this Exchange Agreement shall (i) not be prohibited by any applicable law or governmental regulation, (ii) not subject the Holders to any penalty or, in the reasonable judgment of the Holders, other onerous conditions under or pursuant to any applicable law or governmental regulation and (iii) be permitted by the laws and regulations of the jurisdictions to which the Holders are subject.
(k) The Company shall have received all consents, permits and other authorizations, and made all such filings and declarations, as may be required from any person or entity pursuant to any law, statute, regulation or rule (federal, state, local and foreign), or pursuant to any agreement, order or decree to which the Company is a certificate of a senior officer of party or to which it is subject, in connection with the Company, dated as of the Closing Date, certifying to that facttransactions contemplated by this Exchange Agreement.
d. On (l) Prior to the Closing Exchange Date, the Company shall have duly executed furnished to the Holders and their counsel such further information, opinions, certificates, and documents as the Holders or their counsel may reasonably request.
(m) On or before the Expiry Date, the Holders shall have received satisfactory evidence that the applicable Existing Trustee under the applicable Existing Indenture has received the payments with respect to the Existing Securities more specifically described on Funds Flow and Settlement Statement attached hereto as Schedule 3(m).
(n) On or before the Expiry Date, but only after the condition specified in Section 3(m) has been fulfilled, the Company shall have instructed the applicable Existing Trustee under the applicable Existing Indenture to cancel the Existing Securities.
(o) As of the date of this Exchange Agreement, there is no event of default (as defined in the applicable Senior Debt Indenture) by the Company in the payment of any principal of or any premium or interest on any Senior Debt (as defined in each Existing Indenture and each New Indenture) when the same becomes due and payable (following any grace period, if applicable), whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Exchange Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Exchange Agreement shall not be reasonably satisfactory in form and substance to the Holders or their counsel, this Exchange Agreement and all the Holders’ obligations hereunder may be canceled at, or at any time prior to, the Exchange Date by the Holders. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any officer of the Company and delivered to the Investor an Investor Agreement Holders or the Holders’ counsel in substantially connection with the form set forth as Exhibit B hereto (Operative Documents and the “Investor Agreement”) transactions contemplated hereby and thereby shall be deemed to be a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation representation and warranty of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver and not by the Company of the following conditions:
a. The representations and warranties of the Investor contained such officer in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date)individual capacity.
b. The Investor shall have performed in all material respects all of its covenants and obligations in this Agreement that are to be performed at or prior to the Closing.
c. On the Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” with respect to the transactions contemplated by this Agreement, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminated, in each case without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 1 contract
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned when made and on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed in all material respects;
c. On (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the Company shall have filed with the State of Delaware, and the State of Delaware shall have provided evidence of acceptance of, the Series E Certificate of Designation, the Series F Certificate of Designation and the Series G Certificate of Designation;
(v) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(vi) the Company shall have obtained the approval of the principal Trading Market for this Agreement as well as any required regulatory and third-party approvals as to which the Company and the Purchasers shall agree; and
(vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Shares at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ault Alliance, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Initial Closing are subject to complete the transactions contemplated by Section 2 hereof following conditions being met:
(i) the “Stock Purchase”) shall be conditioned accuracy in all material respects on the satisfaction or waiver Initial Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date);
(ii) all obligations, and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed in all material respects all of its covenants and obligations in agreements of each Purchaser under this Agreement that are required to be performed at or prior to the Closing, and Initial Closing Date shall have been performed in all material respects;
(iii) the Investor delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement;
(iv) the Escrow Agent shall have received executed signature pages to this Agreement and the Escrow Agreement from Purchasers and the Escrow Agent shall have received payment of readily of available funds representing corresponding Subscription Amounts equal to a certificate of a senior officer least the Minimum Offering Amount, in the aggregate, from such Purchasers in cash.
(b) The respective obligations of the CompanyPurchasers hereunder in connection with the Initial Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (determined without regard to any materiality, dated as Material Adverse Effect or other similar qualifiers therein) when made and on the Initial Closing Date of the Closing Date, certifying to that fact.
d. On the Closing Date, the Company shall have duly executed and delivered to the Investor an Investor Agreement in substantially the form set forth as Exhibit B hereto (the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate as of such date).;
b. The Investor shall have performed in (ii) all material respects all of its obligations, covenants and obligations in agreements of the Company under this Agreement that are required to be performed at or prior to the Closing.
c. On the Initial Closing Date, the Investors shall have duly executed and delivered to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock Date shall have been duly authorized for listing, subject to official notice of issuance, on performed;
(iii) the New York Stock Exchange.
c. The Board of Directors delivery by the Company of the Federal Deposit Insurance Corporation items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in the United States shall have issued a “clearance letter” been no Material Adverse Effect with respect to the transactions contemplated by this AgreementCompany since the date hereof;
(v) from the date hereof to the Initial Closing Date, without trading in the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but Common Stock shall not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained suspended by the Commission or made and the Company’s principal Trading Market and, at any time from the date hereof prior to the Initial Closing Date, trading in securities generally as reported by Bloomberg L.P. shall be not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in full force and its effect and all waiting periods under the Required Approvals shall have expired on, or been terminatedany material adverse change in, any financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity ; and
(vi) the Escrow Agent shall have instituted an investigation or proceeding that could result received executed signature pages to this Agreement from Purchasers and the Escrow Agent shall have received corresponding Subscription Amounts from such Purchasers in such a judgment, injunction, order or decreecash.
Appears in 1 contract
Sources: Securities Purchase Agreement (Genius Brands International, Inc.)
Closing Conditions. (a) The obligation obligations of the parties Company hereunder in connection with the Closing are subject to complete the transactions contemplated following conditions being met or waived:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by Section 2 hereof (the “Stock Purchase”materiality or Material Adverse Effect, in all respects) shall be conditioned on the satisfaction or waiver Closing Date of the following conditions:
3.1. The obligation of the Investor to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Investor of the following conditions:
a. The Investor shall have received an opinion, dated the Closing Date, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, and/or another nationally recognized law firm, as counsel to the Company, as to the validity of the Securities being sold in the Stock Purchase, substantially in the form set forth in Schedule 3.1(a) to this Agreement.
b. The representations and warranties of the Company Purchasers contained herein (unless such representation or warranty is as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct as of such date), and the Investor shall have received a certificate of the chief executive officer and chief financial officer of the Company, dated as of the Closing Date, substantially in the form set forth in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall have performed accurate in all material respects respects;
(ii) all of its obligations, covenants and obligations in this Agreement that are agreements of each Purchaser required to be performed at or prior to the Closing, and the Investor Closing Date shall have received a certificate of a senior officer been performed; and
(iii) the delivery by each Purchaser of the Company, dated as items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Closing Date, certifying to that fact.
d. On Purchasers hereunder in connection with the Closing Date, the Company shall have duly executed and delivered are subject to the Investor an Investor Agreement following conditions being met or waived:
(i) the accuracy in substantially all material respects (or, to the form set forth as Exhibit B hereto (extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the “Investor Agreement”) and a Registration Rights Agreement in substantially the form set forth as Exhibit C hereto (the “Registration Rights Agreement”).
3.2. The obligation Closing Date of the Company to complete the Stock Purchase shall be conditioned on the satisfaction or waiver by the Company of the following conditions:
a. The representations and warranties of the Investor Company contained herein (unless such representation and warranty is as of a specific date therein in this Agreement which case they shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for any such representations or warranties made as of the date hereof or as of another date, which shall be true and correct accurate in all material respects as of such date).;
b. The Investor shall have performed (ii) the approval of the issuance of the Securities under this Agreement by the stockholders of the Company in an extraordinary general meeting;
(iii) the declaration of effectiveness of the Registration Statement by the U.S. Securities and Exchange Commission;
(iv) all material respects all of its obligations, covenants and obligations in this Agreement that are agreements of the Company required to be performed at or prior to the Closing.Closing Date shall have been performed;
c. On (v) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(vi) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(vii) from the date hereof to the Closing Date, trading in the Investors Common Stock shall not have duly executed and delivered been suspended by the Commission or the Company’s Trading Market, and, at any time prior to the Company each of the Registration Rights Agreement and the Investor Agreement.
3.3. The obligation of the parties to complete the Stock Purchase Closing Date, trading in securities generally as reported by Bloomberg L.P. shall also be conditioned on the satisfaction or waiver by both the Company and the Investor of the following conditions.
a. The Company shall have duly filed with the Secretary of State of the State of Delaware the Preferred Stock CoD.
b. The shares of Common Stock issuable at the Closing or upon conversion of the Preferred Stock shall not have been duly authorized for listingsuspended or limited, subject to official notice of issuanceor minimum prices shall not have been established on securities whose trades are reported by such service, or on the New York Stock Exchange.
c. The Board of Directors of the Federal Deposit Insurance Corporation any Trading Market, nor shall a banking moratorium have granted a written “cross guarantee waiver” pursuant to Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form and substance reasonably acceptable to the Company and the Investor.
d. The Board of Governors of the Federal Reserve System shall have issued a written determination that Investor does not and will not “control” the Company or any of its subsidiaries for purposes of the U.S. Bank Holding Company Act of 1956, as amended, without the imposition of any term, condition or consequence the acceptance of which would constitute a Substantial Detriment.
e. The Staff of the Committee on Foreign Investment in been declared either by the United States or New York State authorities nor shall there have issued a “clearance letter” with respect to the transactions contemplated by this Agreementoccurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, without the imposition of or any termmaterial adverse change in, condition or consequence the acceptance of which would constitute a Substantial Detriment.
f. The approvals or authorizations of, filings and registrations with, and notifications to, all governmental or regulatory authorities (collectively, “Governmental Entities”) required for the Investor’s acquisition of the Securities (but not for the conversion of the Preferred Stock into Common Stock) (collectively, with those set forth in 3.3(c), (d), and (e), the “Required Approvals”) shall have been obtained or made and shall be in full force and effect and all waiting periods under the Required Approvals shall have expired or been terminatedany financial market which, in each case without case, in the imposition reasonable judgment of any termsuch Purchaser, condition makes it impracticable or consequence inadvisable to purchase the acceptance of which would constitute a Substantial Detriment, and no provision of any applicable law or regulation, judgment, injunction, order or decree shall be in effect that would prohibit Securities at the Closing, and no Governmental Entity shall have instituted an investigation or proceeding that could result in such a judgment, injunction, order or decree.
Appears in 1 contract
Sources: Securities Purchase Agreement (Nova Lifestyle, Inc.)