Closing Dates. A. The Closing Date shall occur on the date which is the first Trading Day after each of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing of the purchase and issuance of the Purchased Securities shall occur on the Closing Date at the offices of the Escrow Agent. (i) If the Closing Date does not occur by the close of business on January 31, 2005, then at any time after that date and prior to the date on which the Closing Date occurs, the Lender may, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the Company. (ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow Instructions.
Appears in 1 contract
Closing Dates. A. The obligation of the Investor hereunder to purchase that portion of the Shares at each Closing Date shall occur on as set forth in Exhibit A is subject to the date which is satisfaction, at or before the first Trading Day after First Closing, of each of the following conditions, provided that these conditions contemplated by Sections 7 are for the Investor's sole benefit and 8 hereof shall have either been satisfied or been may be waived by the party Investor at any time in whose favor such its sole discretion by providing the Company with prior written notice thereof, and provided further, that the conditions run. The closing of the purchase set forth in Section 6(a)(iii)(B), (ix) and issuance of the Purchased Securities (x) shall occur on the Closing Date at the offices of the Escrow Agent.be applicable to all Closings:
(i) If The Investor shall have obtained certain governmental approvals in the Closing Date does not occur by People's Republic of China (the close of business on January 31, 2005, then at any time after that date and prior to the date on which the Closing Date occurs, the Lender may, by written notice to the Escrow Agent (a "Cancellation NoticePRC") with a copy to secure the Company, request the return by the Escrow Agent funds necessary to the Lender purchase all of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the CompanyShares.
(ii) If Any waiting period under the Escrow Agent receives HSR Act applicable to the transactions contemplated hereby, shall have expired or been terminated.
(iii) The Company shall have executed and delivered to the Investor (A) each of the Transaction Documents, and (B) stock certificates representing that portion of the Shares being purchased by the Investor at such Closing pursuant to this Agreement.
(iv) The Company and the Investor shall have successfully negotiated the terms and conditions of the Additional Transaction Documents and the Company shall have executed the Additional Transaction Documents to which it is a Cancellation Notice from a Lenderparty and delivered the same to the Investor.
(v) The Investor shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation NoticeLLP, the Cancellation Notice Company's outside counsel, dated as of the First Closing, in form and substance mutually agreed upon the parties hereto.
(vi) The Company shall be deemed null and void ab initio. Notwithstanding anything have delivered to the contrary contained hereinInvestor a copy of the Irrevocable Transfer Agent Instructions, in the Escrow Agent will be authorized form of Exhibit B attached hereto, which instructions shall have been delivered to release and acknowledged in writing by the Escrow Funds Company's transfer agent.
(vii) The Company shall have delivered to the Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the First Closing.
(viii) The Company shall have delivered to others the Investor a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business, as of a date within 10 days of the First Closing.
(ix) The Company shall have delivered to release the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) days of the First Closing.
(x) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the First Closing, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to the Investor, (ii) the Articles of Incorporation and (iii) the Bylaws, each as in effect at each Closing, in form and substance mutually agreed upon the parties hereto.
(xi) The representations and warranties of the Company shall be true and correct as of the date when made and as of each Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to each Closing Date. Such Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of each Closing Date, to the foregoing effect and as to such other Escrow Property matters as may be reasonably requested by the Investor.
(xii) The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of each Closing Date.
(xiii) The Common Stock (I) shall be designated for quotation or listed on the Closing Date upon satisfaction Principal Market and (II) shall not have been suspended, as of the conditions set forth First Closing, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in Sections 7 writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(xiv) All reports, including, but not limited to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2006, which Annual Report shall contain certain restated financial statements, including without limitations those relating to the Company's fiscal years ended December 31, 2005 and 8 hereof 2004, that the Company is obligated to file under the Shares Exchange Act of 1934, as amended, shall have been filed. The "E" modifier appended to the Company's trading symbol as quoted on the Principal Market shall have been removed.
(xv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares.
(xvi) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as provided in the Joint Escrow InstructionsInvestor or its counsel may reasonably request, including, but not limited to the Company's most recent business plan.
Appears in 1 contract
Closing Dates. A. (i) The Closing Date date and time of the initial closing (the “Initial Closing”) shall occur be 10:00 a.m., New York City time, on the date which is Acquisition Closing Date, subject to the first Trading Day after each satisfaction (or waiver) of all of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing of the purchase and issuance of the Purchased Securities shall occur on to the Closing Date at the offices of the Escrow Agent.
(i) If the Closing Date does not occur by the close of business on January 31, 2005, then at any time after that date and prior to the date on which the Closing Date occurs, the Lender may, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the Company.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof 8(a) (or such later or earlier date as is mutually agreed to by the Company and the Buyers) (the “Initial Closing Date”). The Initial Closing shall occur at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as provided the Company and Buyers may collectively designate in writing.
(ii) The date and time of the Joint Escrow Instructionsadditional closing (the “Additional Closing”) shall be 10:00 a.m., New York City time, on the date that is within thirty (30) calendar days from the Initial Closing Date, subject to the satisfaction (or waiver) of all of the conditions to the Closing set forth in Sections 7 and 8(a) (or such later date as is mutually agreed to by the Company and the Buyers) (the “Additional Closing Date,” each of the Initial Closing Date and the Additional Closing Date being referred to herein as a “Closing Date”). The Additional Closing shall occur at the offices of ▇▇▇▇▇ & Lardner LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the Company and Buyers may collectively designate in writing. For purposes of this Agreement, each Buyer’s “Allocation Percentage” shall be (i) with respect to each Closing Date, the quotient of (a) the total original aggregate principal amount of Notes purchased by such Buyer at such Closing, divided by (b) the total original aggregate principal amount of all Notes purchased at such Closing; and (ii) with respect to all Notes purchased pursuant to this Agreement, the quotient of (a) the total original aggregate principal amount of all Notes purchased by such Buyer pursuant to this Agreement, divided by (b) the total original aggregate principal amount of all Notes purchased pursuant to this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Averion International Corp.)
Closing Dates. A. (i) The Closing Date date and time of the initial closing (the “Initial Closing”) shall occur be 10:00 a.m., New York City time, on the date which is Acquisition Closing Date, subject to the first Trading Day after each satisfaction (or waiver) of all of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing of the purchase and issuance of the Purchased Securities shall occur on to the Closing Date at the offices of the Escrow Agent.
(i) If the Closing Date does not occur by the close of business on January 31, 2005, then at any time after that date and prior to the date on which the Closing Date occurs, the Lender may, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the Company.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof 8a (or such later or earlier date as is mutually agreed to by the Company and the Buyers) (the “Initial Closing Date”). The Initial Closing shall occur at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as provided the Company and Buyers may collectively designate in writing.
(ii) The date and time of the Joint Escrow Instructionsadditional closing (the “Additional Closing”) shall be 10:00 a.m., New York City time, on the date that is within thirty (30) calendar days from the Initial Closing Date, subject to the satisfaction (or waiver) of all of the conditions to the Closing set forth in Sections 7 and 8(a) (or such later date as is mutually agreed to by the Company and the Buyers) (the “Additional Closing Date”, each of the Initial Closing Date and the Additional Closing Date being referred to herein as a “Closing Date”). The Additional Closing shall occur at the offices of ▇▇▇▇▇ & Lardner LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the Company and Buyers may collectively designate in writing. For purposes of this Agreement, each Buyer’s “Allocation Percentage” shall be (i) with respect to each Closing Date, the quotient of (a) the total original aggregate principal amount of Notes purchased by such Buyer at such Closing, divided by (b) the total original aggregate principal amount of all Notes purchased at such Closing; and (ii) with respect to all Notes purchased pursuant to this Agreement, the quotient of (a) the total original aggregate principal amount of all Notes purchased by such Buyer pursuant to this Agreement, divided by (b) the total original aggregate principal amount of all Notes purchased pursuant to this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cumulus Investors LLC)
Closing Dates. A. The Closing Date Consummation of the sale provided for herein (the “Closing”) shall occur on a date and time designated in writing by Purchaser provided that such date shall be no later than the later of (i) forty-five days after the Execution Date of this Agreement, or (ii) the second business day following the satisfaction or waiver of all conditions to the obligations of the parties set forth in Article 7 (other than conditions with respect to actions the parties will take at Closing), or (iii) fifteen (15) days after the earlier of (A) the Due Diligence Expiration Date, or (B) the date which is Purchaser waives its right to designate a Site or Supply Site as a Rejected Site (defined below) pursuant to this Agreement by delivering written notice to Seller. The Closing shall occur through the first Trading Day after each offices of the conditions contemplated by Sections 7 Seller’s Title Company (“Closing Escrow Agent”). Purchaser and 8 hereof shall Seller agree to conduct a pre-closing three (3) business days before the Closing Date, which pre-closing is intended to ensure that all documents and other closing items (other than amounts owed hereunder) required under this Agreement have either been satisfied delivered, or been waived by will be delivered, in escrow to the party in whose favor such conditions runClosing Escrow Agent so that Closing may occur as scheduled. The parties agree that the pre-closing of the purchase and issuance of the Purchased Securities shall occur on the Closing Date shall be held through escrow at the offices of the Closing Escrow Agent or at such other location to be determined by the parties. At the Closing, Seller shall convey or assign the Assets to Purchaser by appropriate instruments of transfer and Purchaser shall pay to Closing Escrow Agent.
, for the benefit of Seller, the consideration provided in Section 1.3 and shall assume the Assumed Obligations (as defined in Section 1.6(b) below) by appropriate instrument of assumption as provided in Section 1.6. The Closing for each Site and Supply Site shall be deemed effective as of 7:00 a.m. local time on the Closing Date. All risk of loss with respect to the Assets on or relating to a Site shall be borne by Seller until 7:00 a.m., local time at that Site on the Closing Date, at which time: (i) If risk of loss with respect to such Assets shall be assumed by Purchaser; (ii) Seller shall deliver to Purchaser exclusive possession of such Assets; and (iii) Purchaser shall assume operating control of the Sites upon completion of the site fuel inventory taking. Seller may cancel all insurance coverage on such Assets conveyed to Purchaser effective at 12:01 a.m., local time at the applicable Site, on the day following the Closing Date does not occur Date. It is anticipated that for a period of time after Closing, Purchaser will supply certain Sites and Supply Sites before the processing of credit card transactions for such Sites and Supply Sites is transferred from Seller to Purchaser. Accordingly, the parties agree that (i) Seller shall continue to process such credit card transactions until the processing of credit card transactions has been transferred to Purchaser, and (ii) hold all funds received by it in connection with processing such credit card transactions (in the aggregate, the “Credit Card Funds”) in escrow for the benefit of Purchaser. No later than fifteen (15) days after Closing, Seller shall provide Purchaser with its reconciliation of the Credit Card Funds to be paid over to Purchaser, which reconciliation shall include a deduction from the Credit Card Funds in an amount equal to account receivable balances due Seller by the close dealers of business on January 31, 2005, then at any time after that date and the Supply Sites for the most recent fuel delivery made by Seller prior to Closing, provided that any such fuel delivery was made within the date normal credit term for the particular Supply Site and provided further that such deduction shall be calculated on which a site-by-site (rather than aggregate) basis. Purchaser shall then have five (5) business days after receipt of Seller’s reconciliation to either confirm the Closing Date occursreconciliation or present Seller with any disputes regarding the reconciliation of the Credit Card Funds. Within five (5) business days after Purchaser confirms Seller’s reconciliation or Seller and Purchaser resolve any disputes regarding the reconciliation, Seller shall wire the Lender mayagreed-upon Credit Card Funds to an account designated by Purchaser. Seller agrees that at Closing, by written notice to One Million and 00/100 Dollars ($1,000,000.00) of the Purchase Price will be placed in escrow with the Escrow Agent (a "Cancellation Notice") with a copy to until such time as the Company, request the return agreed-upon Credit Card Funds are received by the Escrow Agent to the Lender Purchaser. The provisions of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if foregoing paragraph shall survive the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the CompanyDate.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow Instructions.
Appears in 1 contract
Closing Dates. A. a. The Initial Closing Date shall occur on the date which is the first Trading Day NYSE trading day after each of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run.
(i) The Additional Closing Date shall be the date which is seven (7) business days after the date of the Company Additional Closing Date Notice or the Buyer Additional Closing Date Notice (as those terms are defined below; each, an "Additional Closing Date Notice") .
(ii) On a date which is no earlier than the fifteenth business day after the Effective Date and ending on the thirtieth business day after the Effective Date, the Company may give notice (the "Company Additional Closing Date Notice") by fax transmission or hand delivery to the Buyer, with a copy to the Escrow Agent, specifying its demand that the Buyer purchase the Additional Preferred Stock, as contemplated by Section 1(a)(ii)(y) hereof. The closing of the purchase and sale of the Additional Preferred Stock shall be subject to the provisions of this Section 6(b) and the other terms of this Agreement.
(iii) It shall be a condition to the Company's right to issue a Company Closing Date Notice that, as of the Additional Closing Notice Date:
(A) The Registration Statement shall have been declared effective and shall continue to be effective;
(B) Each of the Transaction Agreements shall continue to be in full force and effect and be applicable, to the extent relevant, to the Additional Preferred Stock and the Warrants to be issued on the Additional Closing Date (and the Company's issuance of the Purchased Securities Company Additional Closing Date Notice shall constitute the Company's making each such representation and warranty as of such date);
(C) The Closing Bid Price on the trading day immediately prior to the date of the Company Additional Closing Date Notice was not less than $2.00 per share (adjusted to reflect any capital adjustments made by the Company after the Initial Closing Date);
(D) (a)(i) If the average Closing Bid Price for the Common Stock for the thirty (30) trading days ending on the trading day immediately before the date the Company Additional Date Notice was given, was not less than $2.50 per share (adjusted to reflect any capital adjustments made by the Company after the Initial Closing Date), and (ii) the average daily trading volume for the thirty (30) trading days ending the trading day immediately prior to the date of the Company Additional Closing Date Notice was not less than the Volume Standard; provided, however, that if the average daily trading volume during that period is less than the Volume Standard, but at least seventy-five percent (75%) of the Volume Standard, the amount of the Additional Preferred Stock to be purchased by the Buyer shall be two-thirds of the amount contemplated by Section 1(a)(ii)(y);
(i) If the average Closing Bid Price for the Common Stock for the thirty (30) trading days ending on the trading day immediately before the date the Company Additional Date Notice was given, was not less than $4.00 per share (adjusted to reflect any capital adjustments made by the Company after the Initial Closing Date), and (ii) the average daily trading volume for the thirty (30) trading days ending the trading day immediately prior to the date of the Company Additional Closing Date Notice was not less than seventy-five percent (75%) of the Volume Standard; provided, however, that if the average daily trading volume during that period is less than such amount but at least fifty percent (50%) of the Volume Standard, the amount of the Additional Preferred Stock to be purchased by the Buyer shall be two- thirds of the amount contemplated by Section 1(a)(ii)(y);
(E) the Authorization Opinion shall have been issued to the Buyer; and
(F) The representations and warranties of the Company contained in Section 3 hereof shall be true and correct in all material respects and there shall have been no material adverse effect on the business, operations or financial condition or results of operations of the Company and its subsidiaries taken as a whole, from the Initial Closing Date through and including the date the Company gives the Company Additional Closing Date Notice to the Buyer (and the Company's issuance of the Additional Closing Date Notice shall constitute the Company's making each such representation and warranty as of such date).
(iv) The Buyer by written notice to the Company can waive all or any part of the conditions referred to in Section 6(b)(iii) with respect to all or any specified portion of the Additional Preferred Stock; and
(v) If the Company has not given the Company Additional Closing Date Notice, then, during the period commencing on the thirty-first business day after the Effective Date and ending on the forty-fifth business day after the Effective Date, the Buyer shall have the right to give notice (the "Buyer Additional Closing Date Notice") by fax transmission or hand delivery to the Company, with a copy to the Escrow Agent, specifying its demand that the Company issue all or part of the Additional Preferred Stock, as contemplated by Section 1(a)(ii)(y) hereof.
(vi) The closing for the Additional Preferred Stock shall be conducted upon the same terms and conditions as those applicable to the Initial Preferred Stock.
c. Each closing of the purchase and issuance of Preferred Stock shall occur on the relevant Closing Date at the offices of the Escrow AgentAgent and shall take place no later than 3:00 P.M., New York time, on such day or such other time as is mutually agreed upon by the Company and the Buyer.
(i) If the Closing Date does not occur by the close of business on January 31, 2005, then at any time after that date and prior to the date on which the Closing Date occurs, the Lender may, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the Company.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. d. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the relevant Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow Instructions.
Appears in 1 contract
Closing Dates. A. The Closing Date shall occur on (a) Subject to the date which is terms and provisions of this Agreement, the first Trading Day after each of initial closing (the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing "First Closing") of the purchase and issuance sale of Shares and Warrants hereunder shall be in the amounts set forth under the columns entitled "First Closing" on the Schedule of Purchasers. Warrants are issuable to the Purchasers in connection with the First Closing, but not in connection with the Second Closing (as defined below). The First Closing shall be by and among the Company and the Purchasers specified on the Schedule of Purchasers and shall be held on the date (the "First Closing Date") of, and immediately following, the final execution and delivery of at least one counterpart of this Agreement by the Company and the Purchasers, or such other date as shall have been agreed to by the Company and the Purchasers.
(b) Subject to the terms and provisions of this Agreement, an additional closing (the "Second Closing") of the Purchased Securities purchase and sale of Shares hereunder shall be in the amounts set forth under the column entitled "Second Closing" on the Schedule of Purchasers, subject to the provisions of Sections 2.1(c). The Second Closing shall be by and to the Purchasers specified in the Schedule of Purchasers and shall be held on such date (the "Second Closing Date") as shall have been agreed to by the Company and such Purchasers after the following conditions have been met; provided, however, that the Second Closing shall occur on no later than sixty (60) days after the conditions set forth below are satisfied unless the Company and the Purchasers who are to participate in the Second Closing Date at the offices of the Escrow Agent.mutually agree otherwise:
(i) If The First Closing shall have been completed;
(ii) The directors of the Company elected by the Purchasers as holders of the Series A Preferred shall have determined that the Company has achieved milestones numbered 1, 2 and 3 on Exhibit E attached hereto and at least two of the other three milestones set forth on Exhibit E attached hereto, and written evidence of such determination shall have been provided to the Purchasers who are to participate in the Second Closing; and
(iii) The Company shall have satisfactorily complied with the provisions of Section 5 hereof. The First Closing and the Second Closing are sometimes hereinafter referred to together as the "Closings" and each as a "Closing," and the First Closing Date does not occur by and the close Second Closing Date are sometimes hereinafter referred to together as the "Closing Dates" and each as a "Closing Date."
(c) Notwithstanding the provisions of business on January 31Section 2.1(b) or any other provision of this Agreement to the contrary:
(i) In the event that, 2005, then at any time after that date and prior to the date on which satisfaction of the conditions to the Second Closing Date occursset forth in Section 2.1(b), the Lender Company closes a Subsequent Financing, then the Company may, by written notice delivered to the Escrow Agent Purchasers within ten (a "Cancellation Notice"10) with a copy days of the closing of such Subsequent Financing, elect to reduce the number of Shares to be purchased at the Second Closing by One Hundred Seventy-Seven Thousand Nine Hundred Thirty-Six (177,936) Shares and the amount payable by the Purchasers at the Second Closing shall thereupon be reduced by $1,000,000. In such event, the reduction in the number of Shares to be issued to the Company, request Purchasers at the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase PriceSecond Closing, and the Escrow Agent reduction in the amount to be paid by each Purchaser upon the Second Closing, shall return be allocated among the Lender's Escrow Funds Purchasers participating in the Second Closing pro rata based upon the number of Shares and the purchase price originally allocated to such Purchaser with respect to the Lender and Second Closing, as set forth on the Certificates issued to the Lender being held as part Schedule of the Escrow Property to the Company.Purchasers; and
(ii) If In the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs event that prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions to the Second Closing set forth in Sections 7 Section 2.1(b), the Board approves the consummation of a Qualified Public Offering and 8 hereof authorizes the officers of the Company to take actions in furtherance of such an offering, then the Company may, by written notice delivered to the Purchasers within three (3) days of such approval, elect to terminate the Company's rights and as provided in obligations and the Joint Escrow InstructionsPurchasers' rights and obligations with respect to the Second Closing, whereupon neither the Company nor the Purchasers shall have any further right or obligation to consummate the Second Closing.
Appears in 1 contract
Sources: Series a Preferred Stock and Warrant Purchase Agreement (Cellomics Inc)
Closing Dates. A. The Closing Date shall occur on the date which is the first Trading Day after each of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The Each closing of the purchase and issuance a Put of the Purchased Securities shall occur on the Closing Date hereunder (a "Closing") will be held at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP on a date to be determined by and at the Escrow Agent.
sole discretion of the Company; provided that no Closing may be held more than six months after the date of execution of this Agreement.. Each time that the Company determines to hold a Closing, the Company shall give each of the Purchasers notice of the planned Closing (ia "Put Notice") If the Closing Date does not occur by the close of at least five business on January 31, 2005, then at any time after that date and days prior to the date on which of the planned Closing. Each Put Notice will include the date of the planned Closing and the dollar amount of Units to be put to the Purchasers at the Closing. If the dollar amount of Units to be put at the Closing Date occursis equal to the Maximum Put Amount, then each of the Purchasers shall be obligated to purchase at that Closing the number of Units set forth next to that Purchaser's name of Schedule A attached hereto. If the dollar amount of Units to be put at the Closing is less than the Maximum Put Amount, then each of the Purchasers shall be obligated to purchase at that Closing a number of Units equal to the aggregate number of Units being put at that Closing multiplied by such Purchaser's Participation Percentage set forth next to that Purchaser's name of Schedule A attached hereto; provided that any fractional units shall be rounded to the nearest whole Unit, with any half Unit being rounded up to the next whole Unit. Notwithstanding the foregoing, the Lender may, by written notice aggregate dollar amount of Units to be put to the Escrow Agent (a "Cancellation Notice") with a copy to the Company, request the return by the Escrow Agent to the Lender Purchasers at any Closing shall not be less than 25% of the Purchase Price. Upon Maximum Put Amount, unless the Escrow Agent's receipt of such Cancellation Notice, if Units to be put at the Closing Date has not occurred prior to 5 PM (Eastern Time) represent all of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations remaining Units available to be put under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the Company.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow Instructions.
Appears in 1 contract
Closing Dates. A. a. The purchases and sales of Debentures will occur at one or more Closings under this Agreement, the first of which will occur after Buyers have deposited not less than $100,000 of the Purchase Price in the Escrow for the transactions contemplated under this Agreement, on a Closing Date determined by the Placement Agent and the Company. Subsequent Closing(s) under this Agreement will occur after Buyers who will purchase the balance or a portion thereof of the Debentures to be purchased and sold under this Agreement have deposited the amount of their Purchase Prices in the Escrow, with the Closing Date(s) from time to time. The final Closing shall occur after the Buyers who will purchase the balance of the Debentures to be purchased and sold under this Agreement (which may be in any amount up to $700,000, in the aggregate) have deposited the full amount of their Purchase Prices in the Escrow, with the Closing Date of such final Closing (the “Final Closing Date”) to occur on the date determined by the Placement Agent or the Company; provided, that should no additional amounts be deposited into the Escrow, the Final Closing Date shall be a date determined by the Placement Agent, acting in its sole discretion. If any of the conditions precedent to Closing set forth in Sections 7 or 8 are not satisfied and are not waived within thirty (30) days by the party which benefits from such conditions (i.e., the Company, in the case of those conditions set forth in Section 7 and the Buyer(s), in the case of those conditions set forth in Section 8), then the Offering shall terminate, and the Company shall provide written notice of termination to the escrow agent administering the Escrow so stating and instructing the escrow agent to return to the Buyer(s) the amounts held in the Escrow furnished by the Buyer(s), provided, that if the Company does not promptly so furnish such notice and instructions, then the Placement Agent may, in the Company’s stead, provide such notice and instructions, which shall for all purposes be construed as if the same was provided by the Company.
b. In the case of each Closing, the Closing Date shall occur on the date which is the first Trading Day after each of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing It is anticipated that the initial Closing will occur as soon as reasonably practical after the minimum investment in the Offering has been deposited into the Escrow. Following the initial Closing, assuming additional funds representing the Purchase Price of Debentures sought to be acquired are furnished by Buyers into the Escrow, absent a contrary agreement by the Placement Agent and the Company, subsequent Closing(s) will occur on or about the second-to-last last business day of each month while the Offering is being made, prior to the final Closing.
c. In the case of each Closing, the Closing of the purchase and issuance of the Purchased Securities Debentures shall occur on the respective Closing Date at the offices of the Escrow Placement Agent.
(i) If the Closing Date does not occur by the close of business on January 31’s counsel, 2005▇▇▇▇▇▇▇▇ & Worcester LLP, then at any time after that date and prior to the date on which the Closing Date occurs▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, the Lender may▇▇▇▇ ▇▇▇▇▇, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company▇▇▇ ▇▇▇▇, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price▇▇ ▇▇▇▇▇, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held take place no later than 3:00 P.M., New York time, on such day or such other time as part of the Escrow Property to the Company.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to is mutually agreed upon by the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow InstructionsBuyers.
Appears in 1 contract
Sources: Securities Purchase Agreement (Inhibiton Therapeutics, Inc.)
Closing Dates. A. a. The purchases and sales of Debentures will occur at one or more Closings under this Agreement, the first of which will occur after Buyers have deposited not less than $50,000 of the Purchase Price in the Escrow for the transactions contemplated under this Agreement, on a Closing Date determined by the Placement Agent and the Company. Subsequent Closing(s) under this Agreement will occur after Buyers who will purchase the balance or a portion thereof of the Debentures to be purchased and sold under this Agreement have deposited the amount of their Purchase Prices in the Escrow, with the Closing Date(s) from time to time. The final Closing shall occur after the Buyers who will purchase the balance of the Debentures to be purchased and sold under this Agreement (which may be in any amount up to $1,000,000, in the aggregate) have deposited the full amount of their Purchase Prices in the Escrow, with the Closing Date of such final Closing (the “Final Closing Date”) to occur on the date determined by the Placement Agent or the Company; provided, that should no additional amounts be deposited into the Escrow, the Final Closing Date shall be a date determined by the Placement Agent, acting in its sole discretion. If any of the conditions precedent to Closing set forth in Sections 7 or 8 are not satisfied and are not waived within thirty (30) days by the party which benefits from such conditions (i.e., the Company, in the case of those conditions set forth in Section 7 and the Buyer(s), in the case of those conditions set forth in Section 8), then the Offering shall terminate, and the Company shall provide written notice of termination to the escrow agent administering the Escrow so stating and instructing the escrow agent to return to the Buyer(s) the amounts held in the Escrow furnished by the Buyer(s), provided, that if the Company does not promptly so furnish such notice and instructions, then the Placement Agent may, in the Company’s stead, provide such notice and instructions, which shall for all purposes be construed as if the same was provided by the Company.
b. In the case of each Closing, the Closing Date shall occur on the date which is the first Trading Day after each of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing It is anticipated that the initial Closing will occur as soon as reasonably practical after the minimum investment in the Offering has been deposited into the Escrow. Following the initial Closing, assuming additional funds representing the Purchase Price of Debentures sought to be acquired are furnished by Buyers into the Escrow, absent a contrary agreement by the Placement Agent and the Company, subsequent Closing(s) will occur on or about the second-to-last last business day of each month while the Offering is being made, prior to the final Closing.
c. In the case of each Closing, the Closing of the purchase and issuance of the Purchased Securities Debentures shall occur on the respective Closing Date at the offices of the Escrow Placement Agent.
(i) If the Closing Date does not occur by the close of business on January 31’s counsel, 2005Z▇▇▇▇▇▇ Group, then at any time after that date and prior to the date on which the Closing Date occursLLP, the Lender may9▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company▇▇▇▇▇ ▇▇, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice▇▇▇ ▇▇▇▇, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price▇▇ ▇▇▇▇▇, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held take place no later than 3:00 P.M., New York time, on such day or at such other place, date or time as part of the Escrow Property to the Company.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to is mutually agreed upon by the Company and to others and to release the other Escrow Property on Buyers (acting through the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow InstructionsPlacement Agent).
Appears in 1 contract
Sources: Securities Purchase Agreement (Wound Management Technologies, Inc.)
Closing Dates. A. The Initial Closing Date of the purchase and sale of the Contract Interests shall take place on or before ten (10) business days following the date hereof, subject to notification of satisfaction of the conditions to the Closing set forth herein and in Sections 4 and 5 below (or such later date as is mutually agreed to by the Company and the Buyer (the "Initial Closing Date"). The Initial Closing shall occur on the date which is the first Trading Day after each of the conditions contemplated by Sections 7 and 8 hereof shall have either been satisfied or been waived by the party in whose favor such conditions run. The closing of the purchase and issuance of the Purchased Securities shall occur on the Initial Closing Date at the offices of the Escrow Agent.
Company (i) If or such other place as is mutually agreed to by the Company and the Buyers). Subsequent closings shall occur on the Closing Dates as set out in Exhibit B. Buyer shall deliver the amount of stock and/or cash funds provided in such Exhibit B on the dates specified and the Company shall convey to the Buyer the portion of the Contract Interest provided for at such dates as indicated on Exhibit B. A portion of the payments are obligated under this Agreement and a portion shall be payable at the option of the Buyer. Further, a portion of the Purchase Price shall be paid in cash and a portion shall be paid in the Common Stock of Buyer. The number of shares of Buyer’s Common Stock to be given hereby shall be determined by dividing the (1) dollar value of the shares to be given by (2) the average of the closing prices of Buyer’s Common Stock on each of the five (5) trading days preceding such Closing Date does multiplied by 75%. In the event that the Buyer should fail to deliver any of the Common Stock or funds provided for on any date specified, the Company shall have the right, but not occur by the close of business on January 31obligation, 2005, to cancel this Agreement as to its obligation to assign any further Contract Interests and the Buyer shall then at have the right to retain any time after that date Contract Interests paid for and assigned to it prior to the date on which the Closing Date occurs, the Lender may, by written notice to the Escrow Agent (a "Cancellation Notice") with a copy to the Company, request the return by the Escrow Agent to the Lender of the Purchase Price. Upon the Escrow Agent's receipt of such Cancellation Notice, if the Closing Date has not occurred prior to 5 PM (Eastern Time) of the Trading Day following such receipt by the Escrow Agent, the Lender shall have no further obligations under this Agreement, including, without limitation, the obligation to pay any part of the Purchase Price, and the Escrow Agent shall return the Lender's Escrow Funds to the Lender and the Certificates issued to the Lender being held as part of the Escrow Property to the Companydefault date.
(ii) If the Escrow Agent receives a Cancellation Notice from a Lender, but the Closing Date occurs prior to 5 PM (Eastern Time) of Trading Day following the Escrow Agent's receipt of such Cancellation Notice, the Cancellation Notice shall be deemed null and void ab initio. Notwithstanding anything to the contrary contained herein, the Escrow Agent will be authorized to release the Escrow Funds to the Company and to others and to release the other Escrow Property on the Closing Date upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as provided in the Joint Escrow Instructions.
Appears in 1 contract