Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: (i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer. (ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer. (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE. (iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above. (v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto. (vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing. (vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS"). (viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing. (xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing. (xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date. (xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Yieldup International Corp)
Initial Closing Date. The obligation of each Initial Buyer hereunder to purchase the Initial Preferred Shares Notes at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Initial Buyer's sole benefit and may be waived by such Initial Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Initial Buyer (i) each of the Transaction Documents, Documents and delivered (ii) the same Initial Notes (for the account of such Initial Buyer as such Initial Buyer shall instruct) being purchased by such Initial Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Initial Buyer shall have received the opinion of Proskauer Rose LLP, the Company's outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit D attached hereto.
(iii) The Company shall have delivered to such Initial Buyer a certificate evidencing the formation and good standing of the Company issued by the Secretary of State of Delaware, as of a date within ten (10) days of the Initial Closing Date.
(iv) The Company shall have delivered to such Initial Buyer a certificate evidencing the Company's qualification as a foreign entity and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Initial Closing Date.
(v) The Company shall have delivered to such Initial Buyer a certified copy of the Certificate of Designations, shall have been filed with Limited Partnership as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within ten (10) days of State the Initial Closing Date.
(vi) The Company shall have been delivered to such Initial Buyer a certificate, executed by the Secretary of the general partner of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's general partner in a form reasonably acceptable to such Initial Buyer.
, (ii) the Certificate of Limited Partnership and (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSELimited Partnership Agreement, trading each as in effect at the Initial Closing, in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.form attached hereto as Exhibit E.
(ivvii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Initial Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer President of the general partner of the Company, dated as of the Initial Closing Date, to the foregoing effect and in the form attached hereto as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.Exhibit F.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(viviii) The Company shall have executed and delivered to such Initial Buyer a letter from the Stock Certificates Company's transfer agent certifying the number of Units outstanding as of a date within five (in such denominations as such Buyer shall request5) for days of the Initial Preferred Shares being purchased by such Buyer at the Initial ClosingClosing Date.
(viiix) The Board of Directors of Units (i) shall be designated for quotation or listed on the Company Principal Market and (ii) shall not have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As been suspended, as of the Initial Closing Date, by the Company SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have reserved out of its authorized and unissued Common Stockbeen threatened, solely for the purpose of effecting the conversion as of the Preferred SharesInitial Closing Date, at least 923,000 shares of Common Stock.
either (ix1) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agentSEC or the Principal Market or (2) by falling below the minimum listing maintenance requirements of the Principal Market.
(x) The Company shall have delivered to such Buyer a certificate evidencing obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the incorporation and good standing sale of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial ClosingSecurities.
(xi) The Company Notes shall have delivered been approved for trading on PORTAL, subject only to such Buyer a secretary's certificate certifying as notice of issuance at or prior to (A) the Resolutions, (B) certified copies time of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closingpurchase.
(xii) The Company shall have delivered to such Initial Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State lock-up agreements with each of the State of Delaware within ten days of Company's executive officers and directors who own equity in the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to in substantially the transactions contemplated by the Transaction Documents form attached hereto as such Buyer or its counsel may reasonably request.Exhibit G.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Real Estate Partners L P)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have duly executed and delivered to such Buyer (A) each of the Transaction Documents, and delivered (B) the same to Exchanged Preferred Shares (in such numbers as is set forth across from such Buyer's name in column (3) of the Schedule of Buyers) being exchanged by such Buyer at the Initial Closing pursuant to this Agreement and (B) the Initial Preferred Shares (in such numbers as is set forth across from such Buyer's name in column (4) of the Schedule of Buyers) being purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinion of State Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., the Company's outside counsel, dated as of the State Initial Closing Date, in substantially the form of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerExhibit D attached hereto.
(iii) The Common Stock Company shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to such Buyer a copy of the Nasdaq National Market or listing on NYSEIrrevocable Transfer Agent Instructions, trading in the Common Stock issuable upon conversion form of the Initial Preferred Shares to be traded on The Nasdaq SmallCap MarketExhibit C attached hereto, the Nasdaq National Market or NYSE which instructions shall not have been suspended delivered to and acknowledged in writing by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany's transfer agent.
(iv) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update in the form attached hereto as of the Initial Closing Date regarding the representation contained in Section 3(c) above.Exhibit E.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(xivi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(vii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingSecurities.
(xiiviii) The Company Series D Certificate of Designations in the form attached hereto as Exhibit A-1 shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by been filed with the Secretary of State of the State of Delaware within ten days of and shall be in full force and effect, enforceable against the Initial Closing DateCompany in accordance with its terms and shall not have been amended.
(xiiiix) The Company Series E Certificate of Designations in the form attached hereto as Exhibit A-2 shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended.
(x) Such Buyer shall have received lock-up agreements in the form attached hereto as Exhibit F (the "Lock-Up Agreements"), duly executed and delivered to such by each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, P. ▇▇▇▇ ▇▇▇▇▇ and the Company. Each Buyer such other documents relating to acknowledges the transactions contemplated by prior receipt of each of the Transaction Documents as such Buyer or its counsel may reasonably requestLock-Up Agreements.
Appears in 1 contract
Initial Closing Date. The obligation obligations of each Buyer the Lenders in respect of the first Credit Event hereunder to purchase the Initial Preferred Shares at the Initial Closing is are subject to the satisfactionfollowing additional conditions precedent:
(a) The Agent and the Lenders shall have received the favorable written opinion(s) of (i) counsel for each of the Borrowers, at or before the Guarantors and the Grantors, substantially in the forms of Exhibit B annexed hereto, dated the Initial Closing Date, addressing such matters and from such jurisdictions as shall be requested by the Agent (including, without limitation, opinions from Alabama, Louisiana and Mississippi counsel to the Borrowers, opinions from counsel licensed in the relevant jurisdictions of incorporation of each of the following conditionsBorrowers and the Guarantors and the Grantors), provided addressed to the Agent and the Lenders and satisfactory to the Agent, and (ii) counsel for the Target Company and its subsidiaries, dated the Initial Closing Date, addressing such matters as shall be requested by the Agent, addressed to the Agent and the Lenders and satisfactory to the Agent.
(b) The Agent and the Lenders shall have received (i) a copy of the certificate or articles of incorporation or constitutive documents, in each case as amended to date, of each of the Borrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from such Secretary of State or other official, in each case dated as of a recent date; (ii) a certificate of the Secretary of each of the Borrowers, Grantors and Guarantors, dated the Initial Closing Date and certifying (A) that these conditions are for each Buyerattached thereto is a true and complete copy of such person's sole benefit By-laws as in effect on the date of such certificate and may be waived at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Buyer at person's Board of Directors authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents, the Credit Events hereunder and the consummation of the Related Transactions, as applicable, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such person's certificate or articles of incorporation or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to (i) above, and (D) as to the incumbency and specimen signature of each of such person's officers executing this Agreement, the Notes, each Security Document or any time other Loan Document delivered in connection herewith or therewith, as applicable; (iii) a certificate of another of such person's officers as to incumbency and signature of its sole discretionSecretary; and (iv) such other documents as the Agent or any Lender may reasonably request.
(c) The Agent shall have received a certificate, dated the Initial Closing Date and signed by the Financial Officer of each of the Borrowers, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 5.01 hereof and the conditions set forth in this Section 5.02.
(d) Each Lender shall have received its Note, each duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof.
(e) The Agent shall have received the Security Documents (other than the Partnership Pledge Agreement), certificates evidencing the Pledged Stock (including, without limitation, the capital stock of Acquisition Corp. and the Tendered Securities (other than with respect to those Tendered Securities which are subject to guaranteed delivery procedures and which shall be subsequently delivered to the Agent)), together with undated stock powers executed in blank, each duly executed by the applicable Grantors, and each of the other documents, instruments, insurance policies and agreements requested by the Agent.
(f) The Agent shall have received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the Lenders of a UCC Reporter Service, listing all effective financing statements which name as debtor any Borrower, any Guarantor or any Grantor and which are filed in the appropriate offices in the States in which are located the chief executive office and other operating offices of such person or where Collateral is located, together with copies of such financing statements. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have received termination statements, and/or payoff letters which provide further assurances regarding the provision of termination statements, in form and substance satisfactory to it.
(g) Each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or requested by the Agent to be filed, registered or recorded in order to create in favor of the Agent for the benefit of the Secured Parties a first priority perfected security interest in the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation.
(h) The Agent shall have received the results of a search of the Uniform Commercial Code filings made with respect to each Borrower and each Grantor and Guarantor in the jurisdictions in which Uniform Commercial Code filings have been made against each Borrower, each Guarantor and each Grantor pursuant to paragraph (g) above, and such results shall be satisfactory to the Agent.
(i) The Lenders and the Agent shall have received and determined to be in form and substance satisfactory to them:
(i) The Company shall have executed each the most recent (dated within thirty (30) days of the Transaction DocumentsInitial Closing Date) schedule of inventory designations of the Borrowers together with sales and other financial information requested by the Agent, and delivered in the same to such Buyer.form attached hereto as Exhibit J;
(ii) The Certificate evidence that, (A) immediately after giving effect to the consummation of Designationsthe Related Transactions on a pro forma basis (including, shall have been filed without limitation, payment of the aggregate consideration payable to acquire 100% of the Target Stock on a fully diluted basis pursuant to the Tender Offer and the Merger) and after the payment of all anticipated fees, costs and expenses in connection with the Secretary of State Related Transactions, and with all trade payables aged in accordance with normal terms, the Borrowers will have Undrawn Availability plus cash on hand on the Initial Closing Date in an amount not less than $35,000,000, and (B) at all times prior to the consummation of the State Merger, the Borrowers will have Undrawn Availability plus cash on hand in an amount sufficient to acquire all shares of Delaware, capital stock of the Target Company (except those Tendered Securities previously acquired by Jitney Jungle or Acquisition Corp.) and a copy thereof certified by the Agent may reserve from the Undrawn Availability an amount solely for such Secretary of State shall have been delivered purpose and not otherwise available to such Buyer.the Borrowers;
(iii) copies of the Senior Subordinated Indenture and the Senior Subordinated Notes, each certified by a Responsible Officer of Jitney Jungle. The Common Stock Senior Subordinated Notes shall be authorized for quotation on The Nasdaq SmallCap Market or issued pursuant to terms and conditions satisfactory to the Nasdaq National Market or listing on NYSEAgent and the Lenders in all respects, trading in and the Common Stock issuable upon conversion Agent and the Lenders shall have received evidence satisfactory to the Agent and the Lenders of the receipt by the Borrowers of gross cash proceeds of not less than $200,000,000 thereunder. The entire proceeds of the Senior Subordinated Notes shall be applied by Acquisition Corp. towards payment of the purchase price of the Tendered Securities and the consummation of the Related Transactions (other than the Merger) on the Initial Preferred Shares to be traded Closing Date. The aggregate consideration payable under the Merger Agreement (including cash and all other consideration) paid by Acquisition Corp. in connection with the Related Transactions (other than the initial borrowings under the Commitment on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE Initial Closing Date) shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.exceed $24,500,000;
(iv) The representations and warranties a copy of a field examination of the books and records of Jitney Jungle and its subsidiaries;
(v) evidence of the compliance by the Borrowers with Section 6.03 hereof;
(vi) the financial statements described in Section 4.07 hereof, and with respect to the financial statements delivered pursuant to Section 4.07(c), a certificate dated the Initial Closing Date signed by the Financial Officer of Jitney Jungle, to the effect that such financial statements have been prepared by such Financial Officer in accordance with generally accepted accounting principles consistently applied, and satisfactory in all respects to the Agent, and confirming that such statements are consistent with drafts thereof previously delivered to the Agent;
(vii) evidence that the Transactions and the Related Transactions are in compliance with all applicable laws and regulations;
(viii) evidence of payment of all fees owed to the Agent and the Lenders by the Borrowers under this Agreement, the Commitment Letter, the Fee Letter or otherwise;
(ix) the results of an environmental analysis with respect to the Target Company and its subsidiaries' properties and operations conducted by a firm satisfactory to the Agent and the Lenders, and the scope, methodology and results of such environmental analysis shall be satisfactory to the Agent and the Lenders in all respects;
(x) the results of surveys and appraisals of the Target Company's and its subsidiaries' machinery, equipment and real property (in any event complying with any applicable law, including, without limitation, FIRREA), conducted by a firm satisfactory to the Agent and the Lenders, and satisfactory to the Agent and the Lenders in all respects;
(xi) copies of all major customer and supplier contracts with respect to the Target Company and its subsidiaries and each Borrower;
(xii) evidence that all requisite third party consents and waivers (including, without limitation, consents from the holders of the Senior Notes) to the Transactions and the Related Transactions, have been received;
(xiii) evidence that there has been no material adverse change in the business, assets, liabilities, properties, prospects, operations or financial or other condition of (i)
(A) Jitney Jungle and its subsidiaries, taken as a whole, since May 3, 1997 or (B) the Target Company and its subsidiaries, taken as a whole, since March 29, 1997 or (ii) (A) Jitney Jungle and its subsidiaries, taken as a whole, or (B) the Target Company and its subsidiaries, taken as a whole, in each case, from that described in the Pre-Commitment Information (as defined in the Commitment Letter);
(xiv) evidence that all of the Pre-Commitment Information (as defined in the Commitment Letter) shall be true and correct as in all material aspects; and no development or change shall have occurred (A) which has resulted in or could reasonably be expected to result in a material adverse change in, or material adverse deviation from, the Pre-Commitment Information or (B) which has had or could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the business, assets, liabilities, properties, prospects, operations or financial condition of the date when made Target Company and its subsidiaries taken as a whole;
(xv) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting the Target Company, any Borrower, any Guarantor, any Grantor, any of their respective subsidiaries, businesses, assets or rights, any of the Collateral, the Agent or any Lender (A) which could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the business, assets, liabilities, properties, prospects, operations or financial condition of the Target Company and its subsidiaries taken as a whole or which may materially impair the ability of any Borrower, any Grantor or any Guarantor to perform its obligations under any Loan Document to which it is a party or the rights and remedies of the Agent and the Lenders under this Agreement and the Security Documents or (B) which purport to adversely affect any of the Transactions or the Related Transactions; and
(xvi) evidence that (A) immediately prior to the Credit Events on the Initial Closing Date, the Target Indebtedness shall not exceed $16,225,000 and (B) there shall be no outstanding Indebtedness (other than Indebtedness outstanding hereunder and the Prior Indebtedness), or that such Indebtedness (other than Indebtedness outstanding hereunder and the Prior Indebtedness) shall be concurrently with the Credit Events on the Initial Closing Date, satisfied in full and that all Liens securing any obligations arising thereunder shall have been released.
(j) The Agent and the Lenders shall have had the opportunity, if they so choose, to examine the books of account and other records and files of the Target Company, Acquisition Corp., the Borrowers, the Grantors and the Guarantors and their respective subsidiaries to make copies thereof, and to conduct a pre-closing audit or perform other due diligence which shall include, without limitation, verification of payment of payroll taxes and accounts payable, formulation of an opening Borrowing Base and review of tax, environmental, employee benefit and labor issues, and the results of such examination, audit and due diligence shall have been reasonably satisfactory to the Agent and Lenders in all respects. None of the information submitted prior to the Initial 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 performedbeen or become, satisfied and complied taken together with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or all other such information submitted prior to the Initial Closing Date. Such Buyer , false, incomplete or inaccurate in any material and adverse respect, and none of the conditions represented or indicated by BRS, Acquisition Corp., the Target Company, any Borrower or any of their respective subsidiaries to exist shall change in any material and adverse respect.
(k) The Agent shall have received a certificate, executed and had the opportunity to review and determine to be in form and substance satisfactory to it:
(i) copies of all lease agreements entered into by the Chief Executive Officer or Chief Financial Officer Target Company, any Borrower, any Guarantor, any Grantor and/or any of their respective subsidiaries; and
(ii) copies of all loan agreements, notes and other documentation evidencing Indebtedness for borrowed money of the Target Company, dated as any Borrower, any Guarantor, any Grantor and/or any of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer their respective subsidiaries (including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate any amendments to or consents under the Senior Indenture, together with all exhibits and schedules thereto, and all certificates, documents and opinions delivered in connection therewith) and of Incorporation and (C) By-laws, each as in effect at the Initial Closingall other material agreements of any of them.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement (Supermarket Cigarette Sales Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares to be sold at the Initial Closing shall be listed upon The Nasdaq National Market or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect effect, and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding of the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Freidenrich Kuh, LLP dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 10,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary (other than subsidiaries which are organized outside of the United States) in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its the Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date.
(xiv) On the Initial Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement.
(xv) The Company shall have delivered to such Buyers copies of proxy agreements, in a form reasonably acceptable to such buyer, executed by each executive officer and director of the Company pursuant to which such persons agree to vote in favor of the matters described in Section 4(l) and which cover a minimum of 27.7% of the shares of Common Stock outstanding on the date hereof.
(xvi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof of the Certificate of Designations that has been certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX during the 10 trading days prior to and including the Initial Closing Date and notification for listing of all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares to be sold at the Initial Closing shall have been delivered to the Nasdaq National Market, NYSE or AMEX.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) aboveeffect.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. dated as of the Initial Closing Date in substantially the form of Exhibit EXHIBIT C attached heretohereto (the "MINT▇ ▇▇▇I▇ ▇▇▇NION").
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 20,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agentagent with a copy forwarded to the Buyers.
(x) The Company shall have delivered to such Buyer a copy of a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate or an assistant secretary's certificate (so long as the assistant secretary is duly authorized to deliver such certificate) certifying as to (Aa) the Resolutions, (Bb) certified copies of its the Certificate of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ariad Pharmaceuticals Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate Articles of Designations, Amendment shall have been filed with the Secretary of State of the State of DelawareFlorida, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or Market, the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares and the exercise of the related Warrants to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market Market, NYSE or NYSE AMEX shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Initial Preferred Shares and exercise of the related Warrants to be sold at the Initial Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or AMEX.
(iv) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and the exercise of the Warrants, at least 923,000 1,300,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate Articles of Incorporation and (C) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Smart Choice Automotive Group Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the its Initial Preferred Shares Note and Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have duly executed each of the Transaction Documents, and delivered the same to such Buyer: (A) the Initial Note (in such original principal amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers (Initial Closing)) and (B) Initial Warrant (for such aggregate number of Initial Warrant Shares as is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers (Initial Closing)), in each case, which are being purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of Holland & Knight LLP, the Company’s counsel, dated as of the Initial Closing Date, in the form previously provided to the Company.
(iii) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Initial Closing Date.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certified copy of the Certificate of Designations, shall have been filed with Incorporation as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within ten (10) days of State the Initial Closing Date.
(vi) The Company shall have been delivered to such Buyer a certificate, in the form previously provided to the Company, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing.
(iiivii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(iv) The representations Each and warranties every representation and warranty of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of in the Initial Closing Date regarding the representation contained in Section 3(c) aboveform acceptable to such Buyer.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(viviii) The Company shall have executed and delivered to such Buyer a letter from the Transfer Agent certifying the number of shares of Common Stock Certificates (in such denominations as such Buyer shall request) for outstanding on the Initial Preferred Shares being purchased by such Buyer at Closing Date immediately prior to the Initial Closing.
(viiix) The Board of Directors of Common Stock (I) shall be designated for quotation or listed on the Company Principal Market and (II) shall not have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the SEC Documents, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(x) From the date hereof to the Initial Closing Date, (i) trading in the Common Stock shall not have been suspended by the SEC or the Principal 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, (ii) at any time prior to the Initial 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, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of each Buyer, makes it impracticable or inadvisable to purchase the Securities at the Initial Closing
(xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, provided that the Company agrees that the listing of additional share application in connection with the Conversion Shares and Warrant Shares be filed as soon as practicable.
(xii) 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.
(xiii) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
(xiv) The Initial Registration Statement shall be effective and available for the issuance and sale of the Initial Notes, Initial Conversion Shares, Initial Warrants and Initial Warrant Shares hereunder and the Company shall have reserved out of its authorized delivered to such Buyer the related Prospectus (and unissued Common StockProspectus Supplement, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stockif applicable) as required thereunder.
(ixxv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit D C attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentTransfer Agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiiixvi) The Company shall have delivered to such Buyer such other documents documents, instruments or certificates relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer (i) each of the Transaction Documents, Documents and delivered (ii) the same Initial Notes (in such principal amounts as such Buyer shall request) and the related Initial Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinions of State Bingham McCutchen LLP, the ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ States outside counsel, and Naschitz, Brandes & Co., the Company'▇ ▇▇▇▇eli outside counsel, each dated as of the State of DelawareInitial Closing Date, and in a copy thereof certified by such Secretary of State shall have been delivered form reasonably acceptable to such Buyer.
(iii) The Common Stock Company shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to such Buyer a copy of the Nasdaq National Market or listing on NYSEIrrevocable Transfer Agent Instructions, trading in the Common Stock issuable upon conversion form of the Initial Preferred Shares to be traded on The Nasdaq SmallCap MarketExhibit H attached hereto, the Nasdaq National Market or NYSE which instructions shall not have been suspended delivered to and acknowledged in writing by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany's transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing and/or valid existence of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business, as of a date within 10 days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer (the "Transaction Resolutions"), (ii) the Articles of Association and (iii) the Memorandum, each as in effect at the Initial Closing, in the form attached hereto as Exhibit I.
(vii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").J.
(viii) As The Ordinary Shares (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the Company SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have reserved out of its authorized and unissued Common Stockbeen threatened, solely for the purpose of effecting the conversion as of the Preferred SharesInitial Closing Date, at least 923,000 shares either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of Common Stockthe Principal Market.
(ix) The Irrevocable Transfer Agent InstructionsCompany shall have obtained all governmental, in regulatory or third party consents and approvals, if any, necessary for the form sale of Exhibit D attached heretothe Initial Notes and the Initial Warrants. Without limiting the generality of the foregoing, the Company shall also have obtained approval by the OCS and the Investment Center of the transactions contemplated hereunder, together with such other agreements as the Buyers shall reasonably require to ensure that the Buyers enjoy full rights with respect to the Collateral (subject to the rights of the OCS under the R&D Law), evidence of which shall have been delivered provided to and acknowledged in writing by the Company's transfer agentBuyers.
(x) The In accordance with the terms of the Security Documents, the Company shall have delivered to such Buyer a certificate evidencing the incorporation Agent (as defined in the Pledge and good standing Security Agreement) certificates representing the Subsidiaries' shares of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closingcapital stock, along with duly executed blank stock powers.
(xi) The Company Any Old Notes shall have delivered been converted into Ordinary Shares and all of the Company's obligations thereunder shall have been terminated and all security interests pursuant thereto shall have been released and terminated and all filings necessary to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies remove recordation of its Certificate of Incorporation and (C) By-laws, each as floating charge created in effect at the Initial Closingconnection with old notes have been made.
(xii) Within six (6) Business Days prior to the Initial Closing, the Company shall have delivered or caused to be delivered to each Buyer certified copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Buyers shall not show any such Liens (as defined in the Security Documents).
(xiii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by obtained the Secretary of State of the State of Delaware within ten days of the Initial Closing DateShareholder Approval.
(xiiixiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Commtouch Software LTD)
Initial Closing Date. The obligation of each Buyer Subscriber hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each BuyerSubscriber's sole benefit and may be waived by such Buyer Subscriber at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such BuyerSubscriber.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of DelawareFlorida, and a copy thereof certified by such Secretary of State shall have been delivered to counsel for such BuyerSubscriber.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX and all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares and all of the Initial Warrant Shares shall be listed upon the Nasdaq National Market, NYSE or AMEX and the Subscribers shall have received evidence of such listing in a form acceptable to the Subscribers.
(iv) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations this Agreement to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer Subscriber shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer Subscriber including, without limitation, an update as of the Initial Closing Date regarding the representation representations contained in Section Sections 3(c) and 3(g) above.
(v) Such Buyer Subscriber shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Subscriber and in substantially the form of Exhibit C D attached hereto.
(vi) Such Subscriber shall have received the certificate of an officer of the Company in the form set forth as Exhibit E hereto.
(vii) The Company shall have executed and delivered to such Buyer Subscriber the Stock Certificates (in such denominations as such Buyer Subscriber shall request) for the Initial Preferred Shares being purchased by such Buyer Subscriber at the Initial Closing and the Warrants to be issued to such Subscriber at the Initial Closing.
(viiviii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer Subscriber (the "RESOLUTIONS").
(viiiix) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares and the issuance of the Initial Warrant Shares, at least 923,000 3,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer Subscriber a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer Subscriber a secretary's certificate certifying as to (Aa) the Resolutions, (Bb) certified copies of its Certificate the Articles of Incorporation and (Cc) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer Subscriber such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer Subscriber or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Debentures and Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The the Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEMarket, as applicable; trading in the Common Stock issuable upon conversion of the Initial Preferred Shares Debentures and upon exercise of the Initial Warrants, which are to be traded on The the Nasdaq SmallCap Market, Market or the Nasdaq National Market or NYSE Market, as applicable, shall not have been suspended by the SEC, SEC or The Nasdaq Stock Market, Inc. Inc.; and all of the Conversion Shares issuable upon conversion of the Initial Debentures, and all of the Warrant Shares issuable upon exercise of the Initial Warrants, to be sold at the Initial Closing shall be listed upon the Nasdaq SmallCap Market or NYSEthe Nasdaq National Market, as applicable.
(iviii) The representations and warranties of the Company in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above).
(viv) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C D attached hereto.. Exhibit 4.1
(viv) The Company shall have executed and delivered to such Buyer the Stock Certificates Debentures and the Warrants (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(viivi) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viiivii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesDebentures and the exercise of the Warrants, at least 923,000 a number of shares of Common StockStock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion of the then outstanding Debentures and upon exercise of the then outstanding Warrants, including for such purposes any Debentures and any Warrants to be issued at such Closing.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(xviii) The Company shall have delivered to such Buyer a certificate evidencing the status of the Company and the incorporation and good standing of each subsidiary of the Company and each Subsidiary in such corporation's state jurisdiction of incorporation issued by the Ministry of Consumer and Commercial Relations (Ontario), with respect to the Company, and the Secretary of State of such state the State of incorporation Nevada, with respect to the subsidiaries of the Company, as of a date within 10 days of the Initial Closing.
(xiix) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutions, (Bb) certified copies of its Certificate the Articles of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiiix) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
(xi) No suit, action or other proceeding shall have been commenced (and be pending) which seeks to restrain or prohibit or questions the validity or legality of the transactions contemplated by the Transaction Documents, nor shall any such suit, action or proceeding be threatened.
(xii) All consents, Permits, authorizations, approvals, waivers and amendments required for the consummation of the transactions contemplated by the Transaction Documents shall have been obtained.
Appears in 1 contract
Sources: Securities Purchase Agreement (Altair International Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State The Commonwealth of DelawareMassachusetts, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEPrincipal Market, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the Principal Market or the SEC, The Nasdaq Stock Market, Inc. at any time beginning on the date hereof and through and including the Initial Closing Date and the Company shall not have been notified of any pending or NYSEthreatened proceeding or other action to delist or suspend the Common Stock.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit EXHIBIT C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 a number of shares of Common StockStock equal to at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares outstanding on the Initial Closing Date (after giving effect to the Preferred Shares to be issued on the Initial Closing Date and assuming all such Preferred Shares were fully convertible or exercisable on such date regardless of any limitation on the timing or amount of such conversions or exercises).
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies copy of its Certificate Articles of Incorporation and (C) By-laws, each Organization as in effect at certified by the Secretary of State of The Commonwealth of Massachusetts within ten days of the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation clerk's certificate, dated as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date, as to (i) the Resolutions, (ii) the Articles of Organization and (iii) the Bylaws, each as in effect at the Initial Closing.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Alpha Beta Technology Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer each of the Transaction Documents, Documents and delivered the same Initial Notes (in such principal amounts as such Buyer shall request) which are being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Buyer shall have received the opinions of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., the Company's outside counsel, dated as of the Initial Closing Date, in substantially the form of EXHIBIT D attached hereto.
(iii) The Certificate Company shall have delivered to such Buyer a copy of Designationsthe Irrevocable Transfer Agent Instructions, in the form of EXHIBIT C attached hereto, which instructions shall have been filed with delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries (other than Inksure Ltd.) 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 Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business, as of a date within 10 days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within ten (10) days of State the Initial Closing Date.
(vii) The Company shall have been delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer.
, (ii) the Certificate of Incorporation and (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEBylaws, trading each as in effect at the Initial Closing, in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.form attached hereto as EXHIBIT E.
(ivviii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer includingin the form attached hereto as EXHIBIT F. The representations and warranties contained herein shall be deemed to have been modified, without limitationas specified in the Representation Certificate (as defined below) and shall, an update as modified, be true and correct as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, in writing by the SEC or the Principal Market.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingSecurities.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Inksure Technologies Inc.)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at This Agreement shall become effective on the Initial Closing is subject Date so long as each of the following conditions precedent have been satisfied to the Purchaser's satisfaction: The Purchaser shall have received the following, at or before in each case, unless otherwise noted, dated as of the Initial Closing Date, of each : copies of the following conditionsarticles of incorporation of E-LOAN, provided that these conditions are for each Buyer's sole benefit and may be waived certified by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and together with a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by from the Secretary of State of the State of Delaware within ten days and each other jurisdiction in the United States in which E-LOAN is qualified to do business and a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of its jurisdiction of organization, each dated a recent date prior to the Initial Closing Date; resolutions of the board of directors (or any duly authorized committee thereof) of E-LOAN approving and authorizing the execution, delivery and performance by it of the Basic Documents, certified as of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer Date by the secretary of E-LOAN as being in full force and effect without modification or amendment; signature and incumbency certificates of the officers of E-LOAN executing this Agreement; executed original of this Agreement and the Sale and Custodian Agreement; and such other documents relating as the Purchaser may reasonably request. The Purchaser shall have received an Officers' Certificate from E-LOAN dated as of the Initial Closing Date to the effect that: each representation and warranty of E-LOAN contained in this Agreement is true and correct on and as of such day as though made on and as of such date; and no event has occurred and is continuing, or would result from the transactions contemplated by this Agreement, that constitutes a Default. The Purchaser shall have received executed copies of one or more favorable written opinions of counsel for E-LOAN, in form and substance satisfactory to the Transaction Documents Purchaser and its counsel, dated as of the Initial Closing Date and covering substantially such Buyer or its counsel matters as the Purchaser may reasonably request. All corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto shall be satisfactory in form and substance to the Purchaser, and the Purchaser shall have received all such counterpart originals or certified copies of such documents as the Purchaser may reasonably request. The Purchaser shall have received copies of file stamped UCC-1 financing statements naming the Seller as debtor and seller and the Purchaser as secured party and purchaser describing the Contracts, the Financed Vehicles, all other collateral sold to the Purchaser pursuant to this Agreement and all proceeds of the foregoing with the office of the Secretary of State of the State of Delaware.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to counsel for such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market Market, NYSE or NYSE AMEX shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX and all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares to be sold at the Initial Closing shall be listed upon the Nasdaq National Market, NYSE or AMEX.
(iv) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 5,624,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutionsresolutions, (Bb) certified copies of its the Certificate of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Common Shares and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer each of the Transaction DocumentsDocuments and shall have undertaken to deliver, within three (3) Business Days following the Initial Closing Date (A) certificates for the Initial Common Shares (in such denominations as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to this Agreement and delivered (B) the same related Initial Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinion of State Cooley Godward LLP, the Company's counsel, dated as of the State of DelawareInitial ▇▇▇▇ing Date, in form, scope and a copy thereof certified by such Secretary of State shall have been delivered substance reasonably satisfactory to such BuyerBuyer and in substantially the form of Exhibit D attached hereto.
(iii) The Company shall have executed and delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit C attached hereto.
(iv) The Common Stock (I) shall be authorized designated for quotation or listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (II) shall not have been suspended by the SEC, The Nasdaq Stock SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market, Inc. or NYSE.
(ivv) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer (the "Resolutions"), (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing, in the form attached hereto as Exhibit E.
(vi) The representations and warranties of the Company shall be true and correct in all material respects (except for representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects (except for covenants, agreements and conditions that are qualified by materiality, which shall be complied with in all respects) with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares to be sold at the Initial Closing and the Dividend Shares issuable with respect thereto shall be listed upon The Nasdaq National Market or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ Pillsbury Madison & Freidenrich Sutro LLP dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit EXHIBIT C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 1,700,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Immune Response Corp)
Initial Closing Date. The obligation of each Buyer hereunder the Company to purchase issue and sell the Initial Preferred Shares to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with prior written notice thereof:
(i) The Company Such Buyer shall have executed each of the Transaction Documents, Documents to which it is a party and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock Such Buyer shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to the Nasdaq National Market or listing on NYSE, trading Company the Purchase Price (less the amounts withheld pursuant to Section 4(h) in the Common Stock issuable upon conversion case of Oak) for the Initial Preferred Shares being purchased by such Initial Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended wire instructions provided by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany.
(iv) The representations and warranties of the Company such Buyer shall be true and correct in all material respects as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) ), and the Company such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company such Buyer at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received The waiting period(s) (and any extension thereof) under the opinion of Gray ▇▇▇y ▇-▇▇▇▇▇ & Freidenrich dated as ▇▇▇▇▇▇ Antitrust Improvement Acts of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
▇▇▇▇ (vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the ▇▇▇ "RESOLUTIONS▇▇▇ ▇▇▇").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached heretoif applicable, shall have expired or been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered terminated without any condition attached to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closingexpiration or termination.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer the Company hereunder to issue and sell the Initial Preferred Shares and deliver the Warrants to purchase the Initial Preferred Warrant Shares to each Subscriber at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Subscriber with prior written notice thereof:
(i) The Company Such Subscriber shall have executed each of the Transaction Documents, Documents and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerFlorida.
(iii) The Common Stock Such Subscriber shall be authorized have delivered to the Company the Purchase Price for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of Preferred Shares being purchased by such Subscriber at the Initial Preferred Shares Closing by wire transfer of immediately available funds pursuant to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended wire transfer instructions provided by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany.
(iv) The representations and warranties of the Company such Subscriber contained in this Agreement shall be true and correct in all material respects as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) ), and the Company such Subscriber shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations this Agreement to be performed, satisfied or complied with by the Company such Subscriber at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the its Initial Preferred Shares Note and Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have duly executed each of the Transaction Documents, and delivered the same to such Buyer: (A) the Initial Note (in such original principal amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers (Initial Closing)), (B) Series A Warrants (for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers (Initial Closing)), (C) Series B Warrants (for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in column (5) of the Schedule of Buyers (Initial Closing)) and (D) Series C Warrants (for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in column (6) of the Schedule of Buyers (Initial Closing)), in each case, which are being purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the opinion of Cozen ▇’▇▇▇▇▇▇, the Company’s counsel, dated as of the Initial Closing Date, in the form previously provided to the Company.
(iii) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company, TerraSphere, Inc. and Converted Organics of California, LLC in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Initial Closing Date.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within ten (10) days of State the Initial Closing Date.
(vi) The Company shall have been delivered to such Buyer a certificate, in the form previously provided to the Company, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Articles of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing.
(iiivii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(iv) The representations Each and warranties every representation and warranty of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS")Buyer.
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Transfer Agent certifying the number of shares of Common Stock outstanding on the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of Initial Closing Date immediately prior to the Initial Closing.
(xiix) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the SEC Documents, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(x) The Company shall have delivered to such Buyer a secretary's certificate certifying obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, provided that the Company agrees that the listing of additional share application in connection with the Conversion Shares and Warrant Shares be filed as to soon as practicable.
(Axi) 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 Resolutions, (B) certified copies consummation of its Certificate any of Incorporation and (C) By-laws, each as in effect at the Initial Closingtransactions contemplated by the Transaction Documents.
(xii) The Company Since the date of execution of this Agreement, no event or series of events shall have delivered to such Buyer occurred that reasonably would have or result in a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing DateMaterial Adverse Effect.
(xiii) The Company shall have delivered to such Buyer such other documents documents, instruments or certificates relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Converted Organics Inc.)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and the Initial Warrants from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, Documents and delivered the same to such Buyer.
(ii) The Certificate of DesignationsAmendment, shall have been filed with the Secretary Department of State of the State of DelawareNew York, and a copy thereof certified by such Secretary Department of State shall have been delivered to such Buyer.
(iii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SECSEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Preferred Shares and the related Warrants, The Nasdaq Stock as the case may be shall be listed upon the Principal Market, Inc. or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Freidenrich ▇▇▇▇▇▇▇▇▇, LLP dated as of the Initial Closing Date Date, in substantially the form of Exhibit C attached heretoform, scope and substance satisfactory to such Buyer.
(vi) Such Buyer shall have received the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, Esq. dated as of the Initial Closing Date, in form, scope and substance satisfactory to such Buyer.
(vii) The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates for the Initial Preferred Shares and the Initial Warrants (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Initial Warrants being purchased by such Buyer at the Initial Closing.
(viiviii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viiiix) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Initial Preferred SharesShares and the exercise of the Initial Warrants, at least 923,000 2,300,000 shares of Common Stock.
(ixx) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(xxi) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each active Subsidiary in such corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within 10 ten days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Buyer a certified copy of its the Certificate of Incorporation as certified by the Secretary Department of State of the State of Delaware New York as of a date within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a secretary's certificate, dated as the Closing Date, as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the Bylaws, each as in effect at the Initial Closing.
(xiv) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer the Company hereunder to purchase issue and sell the Initial Preferred Shares to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with prior written notice thereof:
(i) The Company Such Buyer shall have executed each of the Transaction Documents, Documents to which it is a party and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock Such Buyer shall be authorized have delivered to the Company the Purchase Price for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in Preferred Shares and the Common Stock issuable upon conversion of related Warrants being purchased by such Buyer at the Initial Preferred Shares Closing by wire transfer of immediately available funds pursuant to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended wire instructions provided by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany.
(iv) The representations and warranties of the Company such Buyer shall be true and correct in all material respects as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) ), and the Company such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations this Agreement to be performed, satisfied or complied with by the Company such Buyer at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors stockholders of the Company shall have adopted resolutions consistent with Section 3(b)(iiapproved at the March 3, 1999 stockholder meeting the proposal to (a) above and in a form reasonably acceptable to such Buyer (approve the "RESOLUTIONS").
(viii) As increase of the Initial Closing Date, number of authorized shares of Common Stock to 100,000,000 and (b) approve the Company shall have reserved out issuance of its authorized and unissued shares of Common Stock, solely for the purpose of effecting Stock upon the conversion of the Series C Convertible Preferred Shares, at least 923,000 shares Stock and the Series D Convertible Preferred Stock in excess of Common Stock.
the Exchange Cap (ix) The Irrevocable Transfer Agent Instructions, as defined in the form Certificate of Exhibit D attached heretoDesignations, shall have been delivered to Preferences and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing Rights of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial ClosingSeries C Convertible Preferred Stock).
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Intelect Communications Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer (i) each of the Transaction Documents, Documents and delivered (ii) the same Initial Notes (in such principal amounts as such Buyer shall request) and the related Initial Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Buyer shall have received the opinions of Milbank, Tweed, Hadley & McCloy LLP, the Company's outside counsel, and Brian O'Donog▇▇▇, ▇he ▇▇▇▇▇▇y's General Counsel, each dated as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Date, in substantially the form of Exhibits H-1 and H-2 attached hereto.
(iii) The Certificate Company shall have delivered to such Buyer a copy of Designationsthe Irrevocable Transfer Agent Instructions, in the form of Exhibit G attached hereto, which instructions shall have been filed with delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation, to the extent required by Section 3(a), as of a date within 10 days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State of the State of Delaware, and New York as of a date within 10 days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy thereof of the Certificate of Incorporation as certified by such the Secretary of State of the State of Delaware within 10 days of the Initial Closing Date.
(vii) The Company shall have been delivered to such Buyer.
Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer (the "RESOLUTIONS"), (ii) the Certificate of Incorporation and (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEBylaws, trading each as in effect at the Initial Closing, in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.form attached hereto as Exhibit I.
(ivviii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.J.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingNotes and the Initial Warrants.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have duly executed and delivered to such Buyer (A) each of the Transaction Documents, Documents and delivered (B) the same to Initial Preferred Shares (in such numbers as is set forth across from such Buyer's name in column (3) of the Schedule of Buyers) being purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinion of State ▇▇▇▇▇▇▇▇ PC, the Company's outside counsel, dated as of the State Initial Closing Date, in substantially the form of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerExhibit D attached hereto.
(iii) The Common Stock Company shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to such Buyer a copy of the Nasdaq National Market or listing on NYSEIrrevocable Transfer Agent Instructions, trading in the Common Stock issuable upon conversion form of the Initial Preferred Shares to be traded on The Nasdaq SmallCap MarketExhibit C attached hereto, the Nasdaq National Market or NYSE which instructions shall not have been suspended delivered to and acknowledged in writing by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany's transfer agent.
(iv) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update in the form attached hereto as of the Initial Closing Date regarding the representation contained in Section 3(c) above.Exhibit E.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(xivi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(vii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingSecurities.
(xiiviii) The Company Certificate of Designations in the form attached hereto as Exhibit A shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by been filed with the Secretary of State of the State of Delaware within ten days of and shall be in full force and effect, enforceable against the Initial Closing DateCompany in accordance with its terms and shall not have been amended.
(xiiiix) The Company Such Buyer shall have received lock-up agreements in the form attached hereto as Exhibit G (the "Lock-Up Agreements"), duly executed and delivered to such Buyer such other documents relating to by each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, P. ▇▇▇▇ ▇▇▇▇▇ and the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestCompany.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer the Company hereunder to purchase issue and sell the Initial Preferred Shares to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with prior written notice thereof:
(i) The Company Such Buyer shall have executed each of the Transaction Documents, Documents to which it is a party and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Such Buyer and each other Buyer shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to the Company the Existing Preferred Share stock certificates (or such Buyer.evidence reasonably satisfactory to the Company that such Existing Preferred Share stock certificate is lost or destroyed)
(iii) The Common Stock Such Buyer and each other Buyer shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to the Nasdaq National Market or listing on NYSECompany the Initial Purchase Price (less, trading in the Common Stock issuable upon conversion case of Capital Ventures, the amounts withheld pursuant to Section 4(g)) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended wire instructions provided by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany.
(iv) The representations and warranties of the Company such Buyer shall be true and correct in all respects as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) , which shall be true and the Company correct as of such specified date), and such Buyer shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations this Agreement to be performed, satisfied or complied with by the Company such Buyer at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to -------------------- purchase the Initial Preferred Shares and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate Articles of Designations, Amendment shall have been filed with the Secretary of State of the State of DelawareFlorida, and a copy thereof certified by such Secretary of State shall have been delivered to counsel for such Buyer.
(iii) The Common Stock shall be authorized for quotation quotation, listing or trading on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEPrincipal Market, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Principal Market or NYSE shall not have been suspended by the SECSEC or the Principal Market and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Initial Preferred Shares or exercise of the Initial Warrants, The Nasdaq Stock as the case may be, to be sold at the Initial Closing shall be listed or quoted upon the Principal Market, Inc. or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate the Articles of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chairman (so long as the Chairman is an executive officer of the Company) or the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's outside counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.. ---------
(vi) The Company shall have executed and delivered to such Buyer the Initial Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and the exercise of the Initial Warrants, at least 923,000 1,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agentagent with a copy forwarded to the Buyers.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutions, (Bb) certified copies of its Certificate the Articles of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate Articles of Incorporation as certified by the Secretary of State of the State of Delaware Florida within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have duly executed and delivered to such Buyer (A) each of the Transaction Documents, Documents and delivered (B) the same to Initial Preferred Shares (in such numbers as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers) being purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinion of State W▇▇▇▇▇▇▇ PC, the Company’s outside counsel, dated as of the State Initial Closing Date, in substantially the form of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerExhibit D attached hereto.
(iii) The Common Stock Company shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to such Buyer a copy of the Nasdaq National Market or listing on NYSEIrrevocable Transfer Agent Instructions, trading in the Common Stock issuable upon conversion form of the Initial Preferred Shares to be traded on The Nasdaq SmallCap MarketExhibit C attached hereto, the Nasdaq National Market or NYSE which instructions shall not have been suspended delivered to and acknowledged in writing by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany’s transfer agent.
(iv) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update in the form attached hereto as of the Initial Closing Date regarding the representation contained in Section 3(c) above.Exhibit E.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company’s transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(xivi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(vii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingSecurities.
(xiiviii) The Company Certificate of Designations in the form attached hereto as Exhibit A shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by been filed with the Secretary of State of the State of Delaware within ten days of and shall be in full force and effect, enforceable against the Initial Closing DateCompany in accordance with its terms and shall not have been amended.
(xiiiix) The Company Such Buyer shall have received lock-up agreements in the form attached hereto as Exhibit G (the “Lock-Up Agreements”), duly executed and delivered to such Buyer such other documents relating to by each of J▇▇▇▇ ▇. ▇▇▇▇▇▇, J▇▇▇ ▇▇▇▇▇▇▇, R▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M. F▇▇▇▇ ▇▇▇▇▇▇▇, G▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, P. M▇▇▇ ▇▇▇▇▇ and the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestCompany.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and the Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of this Agreement and the Transaction DocumentsRegistration Rights Agreement, and delivered the same to such Buyer.
(ii) The Certificate of DesignationsAmendment, shall have been filed with the Secretary of State of the State of DelawareNew York, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized designated for quotation on the Nasdaq National Market or The Nasdaq SmallCap Market or the Nasdaq National Market listed on AMEX or listing on NYSE, and shall not have been suspended from trading on or delisted from such exchanges or quotation or reporting systems nor shall delisting or suspension by such exchanges or quotation or reporting systems have been threatened either (A) in writing by such exchanges or quotation or reporting systems or (B) by falling below the Common Stock minimum listing maintenance requirements of such exchanges or quotation or reporting systems and all of the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Initial Preferred Shares and the related Warrants, as the case may be, to be traded sold at the Initial Closing shall be listed upon or available for quotation on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. AMEX or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Freidenrich ▇▇▇▇▇▇▇ LLP dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C D attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Initial Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and exercise of the Warrants, at least 923,000 2,100,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D E attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its the Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware New York within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the Initial Closing Date.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestrequest upon reasonable advance notice.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder -------------------- to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares to be sold at the Initial Closing and the Dividend Shares issuable with respect thereto shall be listed upon The Nasdaq National Market or NYSE. Notwithstanding the foregoing, the Company shall not be required to list a number of shares of Common Stock for conversion of the Preferred Shares in excess of the Exchange Cap, if applicable.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ Brobeck Phleger & Freidenrich Harrison LLP dated as of the Initial Closing Date Clos▇▇▇ ▇▇▇e, ▇▇ ▇▇rm, scop▇ ▇▇▇ substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.. ---------
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 10,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged --------- in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 20 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten 20 days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Advanced Tissue Sciences Inc)
Initial Closing Date. The obligation of each Initial Buyer hereunder to purchase tender the Initial Series B Preferred Shares to the Company for exchange at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each such Initial Buyer's sole benefit and may be waived by such Initial Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(iA) The Company shall have executed each of the Transaction Documents, Documents and delivered the same to such Initial Buyer.
(iiB) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Initial Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(ivC) The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Initial Closing Date as though made at that time (except for the representations and warranties made by the Company herein that speak as of a specific datedate and except to the extent that any of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations and warranties shall be true and correct without further qualification) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Initial Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect Date and as to such other matters as may be reasonably requested by such Buyer including, without limitation, including an update as of the Initial Closing Date regarding of the representation contained in Section 3(c4(c) above. Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby agree that neither the consummation nor the failure to consummate the transactions contemplated by either the Viant Merger Agreement or the Delano Merger Agreement shall be deemed to be (A) a material adverse change pursuant to Section 4(g) or (B) a breach of any of the representations and warranties made by the Company pursuant to Section 4 of this Agreement.
(vD) Such Initial Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to Oak and in substantially the form of Exhibit EXHIBIT C attached hereto.
(viE) The Company shall have executed and delivered to such Initial Buyer the Exchange Preferred Stock Certificates (in such denominations as such Initial Buyer shall request) for the Initial Exchange Preferred Shares being purchased by such Buyer issued in exchange for the Buyer's Series B Preferred Shares (as set forth in Section 1(b)) at the Initial Closing.
(viiF) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii4(b) above and in a form reasonably acceptable to such Initial Buyer (the "RESOLUTIONS").
(viiiG) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Exchange Preferred Shares, at least 923,000 3,825,000 shares of Common Stock.
(ixH) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, Instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentagent and the Company shall deliver a copy thereof to such Initial Buyer.
(xI) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xiiJ) The Company Unless an Oak nominee shall have delivered been previously appointed to such Buyer a certified copy serve on the Company's Board of its Directors under and pursuant to the Series B Certificate of Incorporation Designations if requested by Oak on or prior to 1:00 p.m. Central Time, on July 17, 2002, an Oak nominee shall have been appointed to serve on the Company's Board of Directors effective as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The , and, if requested by Oak, the Company shall have delivered executed an indemnification agreement with respect to such Buyer such other documents relating nominee, effective as of the Initial Closing Date and in a form provided by Oak prior to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestexecution of this Agreement.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the Initial Warrants from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived only by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Each of the Company and its Subsidiaries shall have executed each of the Transaction Documents, Documents to which it is a party (other than any Additional Notes and Additional Warrants) and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer includingBuyer, without limitation, including an update as of a date as close to the Initial Closing Date regarding as practicable of the representation representations contained in Section Sections 3(c) and 3(bb) above.
(viii) Such Buyer shall have received (A) the opinion of Gray ▇▇▇y ▇▇ ▇▇▇▇▇▇ & Freidenrich ▇▇▇▇▇▇, LLP, dated as of the Initial Closing Date Date, which opinion will address, among other things, laws of the State of Colorado applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C K attached hereto, and (B) the opinions of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇▇▇ & Bolt, LLC, and ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇, each dated as of the Initial Closing Date, which opinions will collectively address, among other things, certain laws of the States of Wyoming, Kansas and Texas applicable to the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit L attached hereto.
(viiv) The Company shall have executed and delivered to such Buyer the Stock Note Certificates and the Initial Warrants (in such denominations as such Buyer shall request) for the Initial Preferred Shares Notes and the Initial Warrants being purchased by such Buyer at the Initial Closing.
(viiv) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii3(b) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viiivi) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesInitial Notes and the exercise of the Initial Warrants, at least 923,000 5,000,000 shares of Common StockStock (such number to be adjusted for any stock splits, stock dividends, stock combinations or other similar transactions involving the Common Stock that are effective at any time after the date of this Agreement).
(ixvii) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, Instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent, and the Company shall have delivered a copy thereof to such Buyer.
(xviii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporationentity's state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state or jurisdiction of incorporation or organization as of a date within 10 ten (10) days of the Initial Closing Date.
(ix) The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Articles of Incorporation, certified as of a date within ten (10) days of the Initial Closing Date, by the Secretary of State of the State of Colorado, and (C) the Bylaws, each as in effect at the Initial Closing.
(x) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xi) The Company shall have delivered to such Buyer a secretaryletter from the Company's certificate transfer agent certifying the number of shares of Common Stock outstanding as to of a date within five (A5) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xii) The Company and its Subsidiaries shall have delivered to such Buyer evidence, satisfactory to such Buyer, of the repayment of all borrowings (including all principal thereof and interest and fees thereon) under the LaSalle Facility and the U.S. Bank Facility, and undertakings and authorizations in a form acceptable to such Buyer concerning all UCC-3 termination statements and other notices, certificates, instruments, documents and other papers, filings and actions necessary or desirable to terminate and release all security interests of LaSalle and U.S. Bank in the Collateral.
(xiii) The Company and its Subsidiaries shall have delivered and pledged to such Buyer any and all Instruments, Negotiable Documents, Chattel Paper (each of the foregoing terms, as defined in the Security Agreement) and certificated securities (accompanied by stock powers executed in blank), duly endorsed and/or accompanied by such instruments of assignment and transfer executed by the Company and its Subsidiaries, in such form and substance as such Buyer may request.
(xiv) The Company and its Subsidiaries shall have given, executed, delivered, filed and/or recorded any financing statements, notices, instruments, documents, agreements and other papers that may be necessary or desirable (in the reasonable judgment of such Buyer) to create, preserve, perfect or validate the security interest granted to such Buyer pursuant to the Security Agreement and to enable such Buyer to exercise and enforce its rights with respect to such security interest.
(xv) The Company shall not have made any public announcement regarding the transactions contemplated by the Agreement prior to the Initial Closing.
(xvi) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation obligations of each Buyer the Lenders in respect of the first Credit Event hereunder to purchase the Initial Preferred Shares at the Initial Closing is are subject to the satisfactionfollowing additional conditions precedent:
(a) The Agent and the Lenders shall have received the favorable written opinion(s) of (i) counsel for each of the Borrowers, at or before the Guarantors and the Grantors, substantially in the forms of Exhibit B annexed hereto, dated the Initial Closing Date, addressing such matters and from such jurisdictions as shall be requested by the Agent (including, without limitation, opinions from Alabama, Louisiana and Mississippi counsel to the Borrowers, opinions from counsel licensed in the relevant jurisdictions of incorporation of each of the following conditionsBorrowers and the Guarantors and the Grantors), provided addressed to the Agent and the Lenders and satisfactory to the Agent, and (ii) counsel for the Target Company and its subsidiaries, dated the Initial Closing Date, addressing such matters as 70 shall be requested by the Agent, addressed to the Agent and the Lenders and satisfactory to the Agent.
(b) The Agent and the Lenders shall have received (i) a copy of the certificate or articles of incorporation or constitutive documents, in each case as amended to date, of each of the Borrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from such Secretary of State or other official, in each case dated as of a recent date; (ii) a certificate of the Secretary of each of the Borrowers, Grantors and Guarantors, dated the Initial Closing Date and certifying (A) that these conditions are for each Buyerattached thereto is a true and complete copy of such person's sole benefit By-laws as in effect on the date of such certificate and may be waived at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Buyer at person's Board of Directors authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents, the Credit Events hereunder and the consummation of the Related Transactions, as applicable, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such person's certificate or articles of incorporation or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to (i) above, and (D) as to the incumbency and specimen signature of each of such person's officers executing this Agreement, the Notes, each Security Document or any time other Loan Document delivered in connection herewith or therewith, as applicable; (iii) a certificate of another of such person's officers as to incumbency and signature of its sole discretionSecretary; and (iv) such other documents as the Agent or any Lender may reasonably request.
(c) The Agent shall have received a certificate, dated the Initial Closing Date and signed by the Financial Officer of each of the Borrowers, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 5.01 hereof and the conditions set forth in this Section 5.02.
(d) Each Lender shall have received its Note, each duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof.
(e) The Agent shall have received the Security Documents, certificates evidencing the Pledged Stock (including, without limitation, the capital stock of Acquisition Corp. and the Tendered Securities (other than with respect to those Tendered Securities which are subject to guaranteed delivery procedures and which shall be subsequently delivered to the Agent)), together with undated stock powers executed in blank, each duly executed by the applicable Grantors, and each of the other documents, instruments, insurance policies and agreements requested by the Agent.
(f) The Agent shall have received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the Lenders of a UCC Reporter Service, listing all effective financing statements which name as debtor any Borrower, any Guarantor or any Grantor and which are filed in the appropriate offices in the States in which are located the chief executive office and other operating offices of such person or where Collateral is located, together with copies of such financing statements. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have received termination statements, and/or payoff letters which provide further assurances regarding the provision of termination statements, in form and substance satisfactory to it.
(g) Each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or requested by the Agent to be filed, registered or recorded in order to create in favor of the Agent for the benefit of the Secured Parties a first priority perfected security interest in the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation.
(h) The Agent shall have received the results of a search of the Uniform Commercial Code filings made with respect to each Borrower and each Grantor and Guarantor in the jurisdictions in which Uniform Commercial Code filings have been made against each Borrower, each Guarantor and each Grantor pursuant to paragraph (g) above, and such results shall be satisfactory to the Agent.
(i) The Lenders and the Agent shall have received and determined to be in form and substance satisfactory to them:
(i) The Company shall have executed each the most recent (dated within thirty (30) days of the Transaction DocumentsInitial Closing Date) schedule of inventory designations of the Borrowers together with sales and other financial information requested by the Agent, and delivered in the same to such Buyer.form attached hereto as Exhibit J;
(ii) The Certificate evidence that, (A) immediately after giving effect to the consummation of Designationsthe Related Transactions on a pro forma basis (including, shall have been filed without limitation, payment of the aggregate consideration payable to acquire 100% of the Target Stock on a fully diluted basis pursuant to the Tender Offer and the Merger) and after the payment of all anticipated fees, costs and expenses in connection with the Secretary of State Related Transactions, and with all trade payables aged in accordance with normal terms, the Borrowers will have Undrawn Availability plus cash on hand on the Initial Closing Date in an amount not less than $35,000,000, and (B) at all times prior to the consummation of the State Merger, the Borrowers will have Undrawn Availability plus cash on hand in an amount 72 sufficient to acquire all shares of Delaware, capital stock of the Target Company (except those Tendered Securities previously acquired by Jitney Jungle or Acquisition Corp.) and a copy thereof certified by the Agent may reserve from the Undrawn Availability an amount solely for such Secretary of State shall have been delivered purpose and not otherwise available to such Buyer.the Borrowers;
(iii) copies of the Senior Subordinated Indenture and the Senior Subordinated Notes, each certified by a Responsible Officer of Jitney Jungle. The Common Stock Senior Subordinated Notes shall be authorized for quotation on The Nasdaq SmallCap Market or issued pursuant to terms and conditions satisfactory to the Nasdaq National Market or listing on NYSEAgent and the Lenders in all respects, trading in and the Common Stock issuable upon conversion Agent and the Lenders shall have received evidence satisfactory to the Agent and the Lenders of the receipt by the Borrowers of gross cash proceeds of not less than $200,000,000 thereunder. The entire proceeds of the Senior Subordinated Notes shall be applied by Acquisition Corp. towards payment of the purchase price of the Tendered Securities and the consummation of the Related Transactions (other than the Merger) on the Initial Preferred Shares to be traded Closing Date. The aggregate consideration payable under the Merger Agreement (including cash and all other consideration) paid by Acquisition Corp. in connection with the Related Transactions (other than the initial borrowings under the Commitment on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE Initial Closing Date) shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.exceed $________;
(iv) The representations and warranties a copy of a field examination of the books and records of Jitney Jungle and its subsidiaries;
(v) evidence of the compliance by the Borrowers with Section 6.03 hereof;
(vi) the financial statements described in Section 4.07 hereof, and with respect to the financial statements delivered pursuant to Section 4.07(c), a certificate dated the Initial Closing Date signed by the Financial Officer of Jitney Jungle, to the effect that such financial statements have been prepared by such Financial Officer in accordance with generally accepted accounting principles consistently applied, and satisfactory in all respects to the Agent, and confirming that such statements are consistent with drafts thereof previously delivered to the Agent;
(vii) evidence that the Transactions and the Related Transactions are in compliance with all applicable laws and regulations;
(viii) evidence of payment of all fees owed to the Agent and the Lenders by the Borrowers under this Agreement, the Commitment Letter, the Fee Letter or otherwise;
(ix) the results of an environmental analysis with respect to the Target Company and its subsidiaries' properties and operations conducted by a firm satisfactory to the Agent and the Lenders, and the scope, methodology and results of such environmental analysis shall be satisfactory to the Agent and the Lenders in all respects;
(x) the results of surveys and appraisals of the Target Company's and its subsidiaries' machinery, equipment and real property (in any event complying with any applicable law, including, without limitation, FIRREA), conducted by a firm satisfactory to the Agent and the Lenders, and satisfactory to the Agent and the Lenders in all respects;
(xi) copies of all major customer and supplier contracts with respect to the Target Company and its subsidiaries and each Borrower;
(xii) evidence that all requisite third party consents and waivers (including, without limitation, consents from the holders of the Senior Notes) to the Transactions and the Related Transactions, have been received;
(xiii) evidence that there has been no material adverse change in the business, assets, liabilities, properties, prospects, operations or financial or other condition of (i)
(A) Jitney Jungle and its subsidiaries, taken as a whole, since May 3, 1997 or (B) the Target Company and its subsidiaries, taken as a whole, since March 29, 1997 or (ii) (A) Jitney Jungle and its subsidiaries, taken as a whole, or (B) the Target Company and its subsidiaries, taken as a whole, in each case, from that described in the Pre-Commitment Information (as defined in the Commitment Letter);
(xiv) evidence that all of the Pre-Commitment Information (as defined in the Commitment Letter) shall be true and correct as in all material aspects; and no development or change shall have occurred (A) which has resulted in or could reasonably be expected to result in a material adverse change in, or material adverse deviation from, the Pre-Commitment Information or (B) which has had or could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the business, assets, liabilities, properties, prospects, operations or financial condition of the date when made Target Company and its subsidiaries taken as a whole;
(xv) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting the Target Company, any Borrower, any Guarantor, any Grantor, any of their respective subsidiaries, businesses, assets or rights, any of the Collateral, the Agent or any Lender (A) which could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the business, assets, liabilities, properties, prospects, operations or financial condition of the Target Company and its subsidiaries taken as a whole or which may materially impair the ability of any Borrower, any Grantor or any Guarantor to perform its obligations under any Loan Document to which it is a party or the rights and remedies of the Agent and the Lenders under this Agreement and the Security Documents or (B) which purport to adversely affect any of the Transactions or the Related Transactions; and
(xvi) evidence that (A) immediately prior to the Credit Events on the Initial Closing Date, the Target Indebtedness shall not exceed $16,225,000 and (B) there shall be no outstanding Indebtedness (other than Indebtedness outstanding hereunder and the Prior Indebtedness), or that such Indebtedness (other than Indebtedness outstanding hereunder and the Prior Indebtedness) shall be concurrently with the Credit Events on the Initial Closing Date, satisfied in full and that all Liens securing any obligations arising thereunder shall have been released.
(j) The Agent and the Lenders shall have had the opportunity, if they so choose, to examine the books of account and other records and files of the Target Company, Acquisition Corp., the Borrowers, the Grantors and the Guarantors and their respective subsidiaries to make copies thereof, and to conduct a pre-closing audit or perform other due diligence which shall include, without limitation, verification of payment of payroll taxes and accounts payable, formulation of an opening Borrowing Base and review of tax, environmental, employee benefit and labor issues, and the results of such examination, audit and due diligence shall have been reasonably satisfactory to the Agent and Lenders in all respects. None of the information submitted prior to the Initial 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 performedbeen or become, satisfied and complied taken together with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or all other such information submitted prior to the Initial Closing Date. Such Buyer , false, incomplete or inaccurate in any material and adverse respect, and none of the conditions represented or indicated by BRS, Acquisition Corp., the Target Company, any Borrower or any of their respective subsidiaries to exist shall change in any material and adverse respect.
(k) The Agent shall have received a certificate, executed and had the opportunity to review and determine to be in form and substance satisfactory to it:
(i) copies of all lease agreements entered into by the Chief Executive Officer or Chief Financial Officer Target Company, any Borrower, any Guarantor, any Grantor and/or any of their respective subsidiaries; and
(ii) copies of all loan agreements, notes and other documentation evidencing Indebtedness for borrowed money of the Target Company, dated as any Borrower, any Guarantor, any Grantor and/or any of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer their respective subsidiaries (including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate any amendments to or consents under the Senior Indenture, together with all exhibits and schedules thereto, and all certificates, documents and opinions delivered in connection therewith) and of Incorporation and (C) By-laws, each as in effect at the Initial Closingall other material agreements of any of them.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement (Jitney Jungle Stores of America Inc /Mi/)
Initial Closing Date. The obligation of each Buyer the Company hereunder to purchase issue and sell the Initial Preferred Shares Notes and the related Warrants to each New Buyer and to exchange the Existing Notes for Exchange Notes with each Exchanging Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with prior written notice thereof:
(i) The Company Such Buyer shall have executed each of the Transaction Documents, Documents to which it is a party and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Such New Buyer and each other New Buyer shall have been filed with delivered to the Secretary Company the Initial Purchase Price (less, in the case of State of H▇▇▇▇▇ Bay, the State of Delaware, and a copy thereof certified amounts withheld by such Secretary Buyer pursuant to Section 4(g)) for the Initial Notes and the related Initial Warrants being purchased by such Buyer at the Initial Closing by wire transfer of State shall have been delivered immediately available funds pursuant to such Buyerthe wire instructions provided by the Company.
(iii) The Common Stock Such Exchanging Buyer shall be authorized have delivered to the Company such Exchanging Buyer's Existing Notes for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSEcancellation.
(iv) The representations and warranties of the Company such Buyer shall be true and correct in all material respects (other than representations and warranties that are already qualified by materiality or material adverse effect which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date) , which shall be true and the Company correct as of such specific date), and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations this Agreement to be performed, satisfied or complied with by the Company such Buyer at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer (i) each of the Transaction Documents, Documents and delivered (ii) the same Initial Notes (in such principal amounts as such Buyer shall request) and the related Initial Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Buyer shall have received the opinion of White & Case, the Company's counsel, dated as of the Initial Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit F attached hereto.
(iii) The Certificate Company shall have delivered to such Buyer a copy of Designationsthe Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been filed with delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company in its state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State of the State of Delaware, and Florida as of a date within 10 days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy thereof of the Certificate of Incorporation as certified by such the Secretary of State of the State of Delaware within 10 days of the Initial Closing Date.
(vii) The Company shall have been delivered to such Buyer.
Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer (the "Resolutions"), (ii) the Certificate of Incorporation and (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEBylaws, trading each as in effect at the Initial Closing, in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.form attached hereto as Exhibit G.
(ivviii) The representations and warranties of the Company shall be true and correct in all material respects (except for representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects (except for covenants, agreements and conditions that are qualified by materiality, which shall be complied with in all respects) with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.H.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Initial Notes and the Initial Warrants other than the Stockholders Approval.
(xi) The Company and holders of Common Stock representing not less than 38.2% of the Company's outstanding Common Stock shall have executed and delivered to such Buyer a secretary's certificate certifying Voting Agreement in the form attached hereto as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.Exhibit I.
(xii) The Company shall have delivered received at least $15 million in aggregate proceeds hereunder (less any amounts permitted to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Datebe withheld hereunder).
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Initial Buyer hereunder to purchase the Initial Preferred Shares and the Initial Warrants from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Initial Buyer's sole benefit and may be waived by such Initial Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, Documents and delivered the same to such Initial Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Initial Buyer.
(iii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SEC, The Nasdaq Stock SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market be threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market, Inc. or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Initial Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Initial Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Initial Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ Wilson Sonsini Goodrich & Freidenrich Rosati dated as of the Initial Closing Date ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇, sc▇▇▇ ▇▇d substance reasonably satisfactory to such Initial Buyer and in substantially the form of Exhibit C D attached hereto.
(vi) Such Initial Buyer shall have received the opinion of James Alan Cook, Esq., General Counsel of the Company, d▇▇▇▇ a▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Closing Date, in form, scope and substance reasonably satisfactory to such Initial Buyer and in substantially the form of Exhibit E attached hereto.
(vii) The Company shall have executed and delivered to such Initial Buyer the Preferred Stock Certificates and the Warrants (in such denominations as such the Initial Buyer shall request) for the Initial Preferred Shares and the Warrants being purchased by such Initial Buyer at the Initial Closing.
(viiviii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii3(b) above and in a form reasonably acceptable to such Initial Buyer (the "RESOLUTIONSResolutions").
(viiiix) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and the exercise of the Warrants, at least 923,000 10,816,165 shares of Common Stock.
(ixx) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D F attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agentagent and the Company shall deliver a copy thereof to such Initial Buyer.
(xxi) The Company shall have delivered to such Initial Buyer a certificate evidencing the incorporation and good standing of the Company and each U.S. Subsidiary in such corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within 10 ten (10) days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Initial Buyer a certified copy of its the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten (10) days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Initial Buyer a secretary's certificate, dated as the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the Bylaws, each as in effect at the Initial Closing.
(xiv) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xv) The Company shall have delivered to such Initial Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the Initial Closing Date.
(xvi) The Company shall have delivered to such Initial Buyer the consent of Foothill Capital Corporation to this Agreement and the transactions contemplated hereby in form, scope and substance reasonably satisfactory to such Initial Buyer.
(xvii) The Company shall have delivered to such Initial Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Initial Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer the Company hereunder to purchase issue and sell the Initial Preferred Shares and the Initial Warrants to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with prior written notice thereof:
(i) The Company Such Buyer shall have executed each of the Transaction Documents, Documents and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Amendment shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerNew York.
(iii) The Common Stock Such Buyer shall be authorized have delivered to the Company the Purchase Price for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares and the Initial Warrants being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended wire instructions provided by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany.
(iv) The representations and warranties of the Company such Buyer shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) ), and the Company such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company such Buyer at or prior to the Initial Closing Date. Such Buyer The Company shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Companyan authorized signatory for such Buyer, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) aboveeffect.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing DateNo statute, the Company shall have reserved out of its authorized and unissued Common Stockrule regulation, solely for the purpose of effecting the conversion of the Preferred Sharesexecutive order, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructionsdecree, in the form of Exhibit D attached hereto, ruling or injunction shall have been delivered to and acknowledged in writing enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing consummation of the Company and each Subsidiary in such corporation's state any of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestthis Agreement.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of DesignationsAmendment, shall have been filed with the Secretary of State of the State of DelawareNew York, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized designated for quotation on The Nasdaq SmallCap Market AMEX or listed on the Nasdaq National Market or listing on NYSE, and shall not have been suspended from trading on or delisted from such exchanges nor shall delisting or suspension by such exchanges have been threatened either (A) in writing by such exchanges or (B) by falling below the Common Stock minimum listing maintenance requirements of such exchanges and the Company has complied with the listing requirements of AMEX for the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Marketand the related Warrants, as the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSEcase may be.
(iv) The representations and warranties of the Company contained herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, which also shall include an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich ▇▇▇▇ LLP, dated as of the Initial Closing Date Date, in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares and Initial Warrants being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and exercise of the Warrants, at least 923,000 2,450,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its the Certificate of Incorporation and Incorporation, (C) By-lawslaws and (D) the number of shares of Common Stock outstanding as of a date within five (5) days of the Initial Closing, each as in effect at the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware New York within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Andrea Electronics Corp)
Initial Closing Date. The obligation of each Buyer Buyers hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's the sole benefit of the Buyers and may be waived by such Buyer a Buyer, with respect to it, at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such BuyerBuyers.
(ii) The Certificate of DesignationsAmendment, shall have been filed with the Secretary of State of the State of DelawareNew York, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerBuyers.
(iii) The Common Stock shall be authorized for quotation on AMEX or the NYSE, or The Nasdaq SmallCap Stock Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and shall not have been suspended from trading on or delisted from such markets nor shall delisting or suspension by the SEC, The Nasdaq Stock Market, Inc. or NYSEsuch markets have been threatened in writing.
(iv) The representations and warranties of the Company contained herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which are true as of that date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer includingeffect, without limitation, which also shall include an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ ▇▇▇▇▇▇ & Freidenrich ▇▇▇▇▇▇▇▇ LLP, dated as of the Initial Closing Date Date, in substantially the form of Exhibit C V attached hereto.
(vi) The Company shall have executed and delivered shall deliver to such Buyer Buyers the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Warrants being purchased by such Buyer Buyers at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer Buyers a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's its state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xiviii) The Company shall have delivered to such Buyer Buyers a secretary's ’s certificate certifying as to (A) the Resolutions, (B) certified copies of its the Certificate of Incorporation and Incorporation, (C) By-lawslaws and (D) the number of shares of Common Stock outstanding as of a date within five (5) days of the Initial Closing, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiiiix) The Company Buyers shall have delivered to purchased an aggregate of 582.887593 shares of Series C Preferred Stock from the previous holder of such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requeststock.
Appears in 1 contract
Sources: Securities Purchase Agreement (Andrea Electronics Corp)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer (i) each of the Transaction DocumentsDocuments and (ii) the Initial Notes (in such principal amounts as such Buyer shall request) and the related Initial Warrants (in such amounts as such Buyer shall request), and delivered in each case which are being purchased by such Buyer at the same Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Buyer shall have received the opinion of (x) Mayer, Brown, ▇▇▇▇ & Maw LLP, the Company’s counsel, dated as of the Initial Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H-1 attached hereto, and (y) the General Counsel to the Company, dated as of the Initial Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H-2 attached hereto.
(iii) The Certificate Company shall have delivered to such Buyer a copy of Designationsthe Irrevocable Transfer Agent Instructions, in the form of Exhibit G attached hereto, which instructions shall have been filed with delivered to and acknowledged in writing by the Company’s transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation’s state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State of Maryland as of a date within 10 days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within 10 days of State the Initial Closing Date.
(vii) The Company shall have been delivered to such Buyer.
Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(c) as adopted by the Company’s Board of Directors in a form reasonably acceptable to such Buyer (the “Resolutions”), (ii) the Certificate of Incorporation and (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEBylaws, trading each as in effect at the Initial Closing, in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.form attached hereto as Exhibit I.
(ivviii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.J.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company’s transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended by the SEC, as of the Initial Closing Date, 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 Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingNotes and the Initial Warrants.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
(xiii) The Voting Agreement shall have been executed and delivered to the Buyers by the parties thereto no later than February 11, 2004, and shall be in full force and effect as of the Initial Closing Date.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer the Company hereunder to purchase issue and sell the Initial Preferred Shares to Buyers at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's the Company’s sole benefit and may be waived by such Buyer the Company at any time in its sole discretion:
(i) The Company Buyers shall have executed each of the Transaction Documents, Documents to which they are a party and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Amendment shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerNew York.
(iii) The Common Stock Buyers shall be authorized have delivered to the Company the Purchase Price for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares (and Warrants) being purchased by Buyers at the Initial Closing by wire transfer of immediately available funds pursuant to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended wire instructions provided by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany.
(iv) The representations and warranties of the Company Buyers contained herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) , which shall be true as of that date), and the Company Buyers shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company Buyer at or prior to the Initial Closing Date. Such Buyer The Company shall have received a certificatecertificate from each Buyer, executed by the Chief Executive Officer of such Buyer or Chief Financial Officer of other person reasonably satisfactory to the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) aboveeffect.
(v) Such Buyer The Buyers shall have received the opinion purchased an aggregate of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as 582.887593 shares of the Initial Closing Date in substantially Series C Preferred Stock from the form previous holder of Exhibit such stock, and the Buyers who purchased such Series C attached hereto.
(vi) The Company Preferred Stock shall have executed the Acknowledgement and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial ClosingWaiver Agreement of even date herewith.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Andrea Electronics Corp)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on the Nasdaq National Market, The Nasdaq SmallCap Market Market, NYSE or the Nasdaq National Market or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares and the exercise of the related Warrants to be traded on the Nasdaq National Market, The Nasdaq SmallCap Market, the Nasdaq National Market NYSE or NYSE AMEX shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Initial Preferred Shares and exercise of the related Warrants to be sold at the Initial Closing shall be listed upon the Nasdaq National Market, The Nasdaq SmallCap Market, NYSE or AMEX.
(iv) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit EXHIBIT C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and the exercise of the Warrants, at least 923,000 3,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Imaging Technologies Corp/Ca)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such Buyer (A) each of the Transaction Documents, (B) the Initial Notes (in such principal amounts as such Buyer shall request) being purchased by such Buyer at the Closing pursuant to this Agreement, and delivered (C) the same Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Buyer shall have received the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, the Company's outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit F attached hereto and a letter stating that the Company is in good standing with its attorneys.
(iii) The Certificate Company shall have delivered to such Buyer a true copy of Designationsthe Irrevocable Transfer Agent Instructions, in the form of Exhibit G attached hereto, which instructions shall have been filed with delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a true copy of 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 Initial Closing Date.
(v) The Company shall have delivered to such Buyer a true copy of 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 Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within ten (10) days of State the Initial Closing Date.
(vii) The Company shall have been delivered to such Buyer a certificate, executed by the Chief Executive Officer of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Articles of Incorporation and (iii) the Bylaws, each as in effect at the Closing, in the form attached hereto as Exhibit H .
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(ivviii) The representations and warranties of the Company shall be true and correct in all material respects (other than representations and warranties that are already qualified by materiality or Material Adverse Effect which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.I.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 five days of the Initial ClosingClosing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Resolutions, (B) certified copies sale of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial ClosingSecurities.
(xii) The Within six (6) Business Days prior to the Closing, the Company shall have delivered or caused to such be delivered to each Buyer a certified copy (A) true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Certificate Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of Incorporation such financing statements, none of which, except as certified otherwise agreed in writing by the Secretary of State Buyers, shall cover any of the State Collateral (as defined in the Security Documents) and the results of Delaware within ten days of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Initial Closing DateBuyers shall not show any such Liens (as defined in the Security Documents); and (B) a perfection opinion in form and substance satisfactory to the Buyers.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
(xiv) The Company shall have provided to the Buyer an acknowledgement, to the satisfaction of the Buyer, from the Company’s certified public accountant as to its ability to provide all consents required in order to file a registration statement in connection with this transaction and that the Company is in good standing with its auditors.
Appears in 1 contract
Sources: Securities Purchase Agreement (MFC Development Corp)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, Designations shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof of the Certificate of Designations that has been certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX during the 10 trading days prior to and including the Initial Closing Date.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation representations contained in Section 3(c) above).
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ Ryan & Freidenrich Sudan dated as of the Initial Closing Date in substantially substantia▇▇▇ the form of Exhibit EXHIBIT C attached heretohereto (the "RYAN & SUDAN OPINION").
(vi) The Company shall have executed exec▇▇▇▇ and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Warrants being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and the exercise of the Warrants, at least 923,000 200% of the number of shares of Common StockStock which would be issuable upon conversion in full of the Initial Preferred Shares to be issued at the Initial Closing and 125% of the number of shares of Common Stock issuable upon exercise of the Warrants to be issued at the Initial Closing.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agentagent with a copy forwarded to the Buyers.
(x) The Company shall have delivered to such Buyer a copy of a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate or an assistant secretary's certificate (so long as the assistant secretary is duly authorized to deliver such certificate) certifying as to (Aa) the Resolutions, (Bb) certified copies of its the Certificate of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
(xv) Each of Herman Frietsch, Peter Ianace and Philip Sudan shall have execu▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ed ▇▇▇▇▇▇ ▇▇▇▇eof t▇ ▇▇▇▇ Buyer agreements which, during the period beginning on the Initial Closing Date and ending on the date the Initial Registration Statement (as defined in the Registration Rights Agreement) is declared effective, prohibit them from (i) selling the Company's securities for less than $3.25 per share, (ii) selling in the aggregate (all three combined) in excess of $200,000 and (iii) making demand on any promissory note or other debt instrument for which the Company is liable.
(xvi) The stockholders of the Company shall have approved at the March 3, 1999 stockholder meeting the proposal to (a) approve the increase of the number of authorized shares of Common Stock to 100,000,000 and (b) approve the issuance of shares of Common Stock upon the conversion of the Series C Convertible Preferred Stock and the Series D Convertible Preferred Stock in excess of the Exchange Cap (as defined in the Certificate of Designations, Preferences and Rights of the Series C Convertible Preferred Stock).
Appears in 1 contract
Sources: Securities Purchase Agreement (Intelect Communications Inc)
Initial Closing Date. The obligation of the Company hereunder to issue and sell Units to each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with written notice thereof:
(i) The Company Such Buyer shall have executed each of the Transaction Documents, Documents (other than the Debentures and the Warrants) and delivered the same to such Buyerthe Company.
(ii) The Certificate of Designations, Such Buyer shall have been filed with delivered to the Secretary of State of Company the State of Delaware, and a copy thereof certified Purchase Price for the Units being purchased by such Secretary Buyer at the Initial Closing by wire transfer of State shall have been delivered immediately available funds pursuant to such Buyerthe wire instructions provided by the Company.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(iv) The representations and warranties of the Company such Buyer in this Agreement shall be true and correct in all material respects as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific fixed date) ), and the Company such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company such Buyer at or prior to the Initial Closing Date. Such Buyer .
(iv) No suit, action or other proceeding shall have received a certificate, executed been commenced (and be pending) which seeks to restrain or prohibit or questions the validity or legality of the transactions contemplated by the Chief Executive Officer Transaction Documents, nor shall any such suit, action or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may proceeding be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) abovethreatened.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed All consents, Permits, authorizations, approvals, waivers and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) amendments required for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board consummation of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestshall have been obtained.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tmci Electronics Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, Documents and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SEC, The SEC or Nasdaq Stock Market, Inc. from trading on Nasdaq nor shall suspension by the SEC or NYSENasdaq have been threatened either (A) in writing by the SEC or Nasdaq or (B) by falling below the minimum listing maintenance requirements of Nasdaq; and the Conversion Shares issuable upon conversion of the Initial Notes shall be listed upon Nasdaq.
(iviii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(viv) Such Buyer shall have received the opinion of Gray Wils▇▇ ▇▇▇y ▇▇▇▇ ▇▇▇▇▇▇▇▇ & Freidenrich ▇osa▇▇, ▇.C. dated as of the Initial Closing Date Date, in substantially the form of Exhibit C attached hereto.
(viv) The Company shall have executed and delivered to such Buyer the Stock Certificates Notes (in such denominations as such Buyer shall request, as specified in the Schedule of Buyers) for the Initial Preferred Shares Notes being purchased by such Buyer at the Initial Closing.
(viivi) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii3(b) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viiivii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, Initial Notes at least 923,000 16,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(xviii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each U.S. Subsidiary in such corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within 10 ten days of the Initial Closing Date.
(ix) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Initial Closing Date.
(x) The Company shall have delivered to such Buyer a secretary's certificate, dated as the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the Bylaws, each as in effect at the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretaryletter from the Company's certificate transfer agent certifying the number of shares of Common Stock outstanding as to within three (A3) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiiixii) The Company shall have delivered to such Buyer such other documents relating to the transactions debt restructuring transaction contemplated by the Transaction Documents as such Buyer or its counsel may reasonably requestBank Debt shall be finalized and shall have closed.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate Articles of Designations, Amendment shall have been filed with the Secretary of State of the State of DelawareFlorida, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The the Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEMarket, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSEInc., at any time beginning on the date hereof and through and including the Initial Closing Date.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 a number of shares of Common StockStock equal to at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares outstanding on the Initial Closing Date (after giving effect to the Preferred Shares to be issued on the Initial Closing Date and assuming all such Preferred Shares were fully convertible or exercisable on such date regardless of any limitation on the timing or amount of such conversions or exercises).
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies copy of its Certificate Articles of Incorporation and (C) By-laws, each as in effect at certified by the Secretary of State of the State of Florida within ten days of the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation secretary's certificate, dated as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date, as to (i) the resolutions described in Section 7(a)(vii), (ii) the Articles of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing.
(xiii) The Company shall have delivered to such Buyer copies of proxy agreements, in a form reasonably acceptable to such Buyer, executed by each executive officer and director of the Company pursuant to which such persons agree to vote in favor of the matters described in Section 4(j).
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and the Additional Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each such Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company and each Buyer with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate Articles of Designations, Amendment shall have been filed with the Secretary of State of the State of DelawareIndiana, and a copy thereof certified by such the Secretary of State of the State of Indiana shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized designated for quotation on The the Nasdaq SmallCap Market National Market, or listed on the NYSE or AMEX, and shall not have been suspended from trading on or delisted from such exchanges nor shall delisting or suspension by such exchanges have been threatened either (A) in writing by such exchanges or (B) by falling below the minimum listing maintenance requirements of such exchanges and the Company has complied with the listing requirements of the Nasdaq National Market or listing on NYSE, trading in for the Common Stock Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Marketand the related Warrants, as the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSEcase may be.
(iv) The representations and warranties of the Company contained herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate Articles of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer may reasonably request, including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion opinions of Gray Barn▇▇ & Thor▇▇y ▇▇▇▇ ▇▇▇ Snel▇ & Freidenrich ▇ilm▇▇ ▇▇▇ dated as of the Initial Closing Date Date, in substantially the form forms of Exhibit C D, attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Initial Warrants being purchased by such the Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and exercise of the Warrants, at least 923,000 9,700,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D E attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate the Articles of Incorporation and (C) the By-laws, each as in effect at the Initial ClosingClosing Date.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate Articles of Incorporation as certified by the Secretary of State of the State of Delaware Indiana within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date.
(xiv) The Company shall have delivered to the Buyers such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer the Buyers or its their counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to -------------------- purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate Statement of Designations, Designations shall have been filed with the Secretary of State of the State of DelawareTexas, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market Market, NYSE or listing on NYSEAMEX, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. Inc., NYSE or NYSEAMEX on the Initial Closing Date.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto.. ---------
(vi) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and the exercise of the Warrants, at least 923,000 a number of shares of Common StockStock equal to at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares and exercise of the Warrants outstanding on the Initial Closing Date (after giving effect to the Preferred Shares and Warrants to be issued on the Initial Closing Date and assuming all such Preferred Shares and Warrants were fully convertible or exercisable on such date regardless of any limitation on the timing or amount of such conversions or exercises).
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate Articles of Incorporation and (C) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer copies of proxy agreements, in a certified copy of its Certificate of Incorporation as certified form reasonably acceptable to such Buyer, executed by the Secretary of State each executive officer and director of the State of Delaware within ten days Company pursuant to which such persons agree to vote in favor of the Initial Closing Datematters described in Section 4(j).
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered (or, in the case of any Transaction Document to which a Subsidiary is a party, caused such Subsidiary to execute and deliver) to such Buyer (A) each of the Transaction DocumentsDocuments to which it or any Subsidiary is a party, (B) the Initial Notes (in such principal amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to this Agreement, and delivered (C) the same Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to such Buyerthis Agreement.
(ii) Such Buyer shall have received the opinion of Peckar & Abramson, P.C., the Company'▇ ▇▇▇▇▇de counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit F attached hereto and a letter stating that the Company is in good standing with its attorneys.
(iii) The Certificate Company shall have delivered to such Buyer a true copy of Designations, the Irrevocable Transfer Agent Instructions which instructions shall have been filed with delivered to and acknowledged in writing by the Company's transfer agent.
(iv) The Company shall have delivered to such Buyer a true copy of 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 ten (10) days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a true copy of certificate evidencing the Company's and each Subsidiary'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 or such Subsidiary conducts business, as of a date within ten (10) days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary Delaware within ten (10) days of State the Initial Closing Date.
(vii) The Company shall have been delivered to such Buyer a certificate, executed by the Chief Executive Officer of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer.
, (ii) the Articles of Incorporation and (iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEBylaws, trading each as in effect at the Initial Closing, in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.form attached hereto as Exhibit G.
(ivviii) The representations and warranties of the Company shall be true and correct in all material respects (other than representations and warranties that are already qualified by materiality or Material Adverse Effect which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.H.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 two (2) days of the Initial ClosingClosing Date.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities and the grant of the security interest in the assets of the Company and its Subsidiaries, including the consent of any existing lender or landlord of the Company or any Subsidiary, as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closingapplicable.
(xii) The Company shall have delivered provided to such the Buyer a certified copy of its Certificate of Incorporation as certified by an acknowledgement, to the Secretary of State satisfaction of the State of Delaware within ten days of Buyer, from the Initial Closing DateCompany's certified public accountant as to its ability to provide all consents required in order to file a registration statement in connection with this transaction and that the Company is in good standing with its auditors.
(xiii) Within six (6) Business Days prior to the Initial Closing, the Company shall have delivered or caused to be delivered to each Buyer true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Buyers shall not show any such Liens (as defined in the Security Documents).
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and the Initial Warrants from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, Documents and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock (x) shall be authorized designated for quotation or listed on The Nasdaq SmallCap the Principal Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE and (y) shall not have been suspended by the SEC, The Nasdaq Stock SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market, Inc. ; and the Conversion Shares and the Warrant Shares issuable upon conversion or NYSEexercise of the Initial Preferred Shares be shall be listed upon the Principal Market.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Freidenrich ▇▇▇▇▇▇▇, P.C. dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C D attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates and the Warrants (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Initial Warrants being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONSResolutions").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Initial Preferred SharesShares and the exercise of the Initial Warrants, at least 923,000 2,500,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D E attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporationentity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Initial Closing Date.
(xii) The Company shall have delivered to such Buyer a secretary's certificate, dated as the Closing Date, as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the Bylaws, each as in effect at the Initial Closing.
(xiii) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(xiv) Each Buyer shall have delivered the Purchase Price for the Initial Preferred Shares and the Initial Warrants to be purchased by such Buyer at the Initial Closing pursuant to this Agreement.
(xv) The Company and Nortel Networks, Inc., a Delaware corporation ("Nortel"), shall have entered into the Credit Agreement, dated January 31, 2000 by and among the Company and Nortel in the form last delivered to such Buyer prior to the date of this Agreement (the "Credit Agreement").
(xvi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Stock at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) i. The Company shall have executed each of this Agreement and the Transaction DocumentsRegistration Rights Agreement, and delivered the same to such Buyer.
(ii) . The Certificate of Designations, Determination shall have been executed by the Company and filed with the Secretary of State of the State of DelawareCalifornia, and a copy thereof certified by such Secretary of State marked as filed shall have been delivered to such Buyer.
(iii) . The Common Stock shall be authorized for quotation trading on The Nasdaq SmallCap Market or the Nasdaq SmallCap, Nasdaq National Market Market, New York Stock Exchange or listing on NYSEAmerican Stock Exchange (collectively, the "Exchanges"), and trading in the Common Stock issuable upon conversion of on the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE applicable Exchange shall not have been suspended by the SEC, The Nasdaq SEC or the applicable Exchange and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Series A Preferred Stock Market, Inc. or NYSEexercise of the Warrants to be sold at the Initial Closing shall be listed upon the applicable Exchange (subject to notice of issuance).
(iv) . The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as of the date when made to materiality in Section 3 above, in which case such representations and warranties shall be true and correct without further qualification) as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations this Agreement to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) v. Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C E attached hereto.
(vi) . The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Series A Preferred Shares Stock being purchased by such Buyer at the Initial ClosingClosing and the Warrants.
(vii) . The Board of Directors of the Company shall have adopted the resolutions consistent with Section 3(b)(ii) above and in a substantially the form reasonably acceptable to such Buyer of Exhibit F attached hereto (the "RESOLUTIONS").
(viii) . As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Series A Preferred SharesStock and the exercise of the Warrants, at least 923,000 an aggregate of (i) 200% of the number of shares of Common StockStock necessary to provide for the issuance of the Conversion Shares assuming current conversion of all of the outstanding Preferred Stock and (ii) the number of shares of Common Stock necessary to provide for the issuance of the Warrant Shares assuming current conversion of all of the outstanding Warrants.
(ix) . The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) x. The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company company and each Subsidiary subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closingafter August 1, 1998.
(xi) . The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate Articles of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) . The Company shall have delivered to such Buyer a certified copy of its Certificate Articles of Incorporation as certified by the Secretary of State of the State of Delaware within ten days California as of a date after August 1, 1998.
xiii. The Company shall have executed the Escrow Agreement, and shall have complied with all of the Initial Closing Dateterms and provisions contained therein.
(xiii) xiv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
xv. The Company shall have an outstanding balance under the Bridge Loan in an amount not in excess of $2,000,000 and that the date upon which the Bridge Loan shall become fully due and payable shall be a date not earlier than March 1, 1999.
xvi. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cardiodynamics International Corp)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Notes and the related Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company and, to the extent it is a party thereto, each of its Existing Subsidiaries, shall have duly executed and delivered to such Buyer: (A) the Initial Notes (in such principal amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to this Agreement, (B) the Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to this Agreement; and (C) each of the other Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinion of State Osler, ▇▇▇▇▇▇ & Harcourt LLP, the Company’s outside counsel, dated as of the State Initial Closing Date, in substantially the form of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerExhibit E attached hereto.
(iii) The Common Stock Company shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to such Buyer a copy of the Nasdaq National Market or listing on NYSEIrrevocable Transfer Agent Instructions, trading in the Common Stock issuable upon conversion form of the Initial Preferred Shares to be traded on The Nasdaq SmallCap MarketExhibit D attached hereto, the Nasdaq National Market or NYSE which instructions shall not have been suspended delivered to and acknowledged in writing by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany’s transfer agent.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by The Director, Canada Business Corporations Act, Industry Canada, within ten (10) days of the Initial Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing, in the form attached hereto as Exhibit F.
(vii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of attached hereto as Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").G.
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company’s transfer agent certifying the number of the Company and each Subsidiary in such corporation's state shares of incorporation issued by the Secretary of State of such state of incorporation Common Stock outstanding as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten five days of the Initial Closing Date.
(ix) The Common Stock (i) shall be or listed on the Principal Market and (ii) shall not have been suspended, as of the Initial Closing Date, by the SEC, the CSA or the Principal Market from trading on the Principal Market nor shall suspension by the SEC, the CSA or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC, the CSA or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(xi) There shall be no Indebtedness of the Company other than Indebtedness which is subordinate to the Notes.
(xii) A pay-off letter in form and substance satisfactory to the Senior Agent from Canadian Imperial Bank of Commerce.
(xiii) The approval of the Principal Market for the issuance of the Securities contemplated hereby and conditional listing of the Conversion Shares, Warrant Shares and Interest Shares shall have been obtained.
(xiv) The approval of the board of directors of the Company for the issuance of the Securities contemplated hereby shall have been obtained.
(xv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Art Advanced Research Technologies Inc)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares Units at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with written notice thereof:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The the Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSEMarket, as applicable; trading in the Common Stock issuable upon conversion of the Initial Preferred Shares Debentures and upon exercise of the Warrants, which are to be traded on The the Nasdaq SmallCap Market, Market or the Nasdaq National Market or NYSE Market, as applicable, shall not have been suspended by the SEC, SEC or The Nasdaq Stock Market, Inc. Inc.; and all of the Conversion Shares issuable upon conversion of the Debentures, and all of the Warrant Shares issuable upon exercise of the Warrants, to be sold at the Initial Closing shall be listed upon the Nasdaq SmallCap Market or NYSEthe Nasdaq National Market, as applicable.
(iviii) The representations and warranties of the Company in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above).
(viv) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich the Company's counsel dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C D attached hereto.
(viv) The Company shall have executed and delivered to such Buyer the Stock Certificates Debentures (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(viivi) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viiivii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesDebentures and the exercise of the Warrants, at least 923,000 a number of shares of Common StockStock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion of the then outstanding Debentures and upon exercise of the then outstanding Warrants, including for such purposes any Debentures and any Warrants to be issued at such Closing.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(xviii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary subsidiary in such corporation's state jurisdiction of incorporation issued by the Secretary of State of such state jurisdiction of incorporation as of a date within 10 days of the Initial Closing.
(xiix) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutions, (Bb) certified copies of its Certificate the Articles of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiiix) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
(xi) No suit, action or other proceeding shall have been commenced (and be pending) which seeks to restrain or prohibit or questions the validity or legality of the transactions contemplated by the Transaction Documents, nor shall any such suit, action or proceeding be threatened.
(xii) All consents, Permits, authorizations, approvals, waivers and amendments required for the consummation of the transactions contemplated by the Transaction Documents shall have been obtained.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tmci Electronics Inc)
Initial Closing Date. The obligation of each New Buyer hereunder to purchase the its Initial Preferred Shares Notes and its related Initial Warrants at the Initial Closing and each Exchanging Buyer to exchange its Existing Notes for Exchange Notes is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer (A) each of the Transaction DocumentsDocuments to which it is a party. (B) with respect to the New Buyers, (x) the Initial Notes (in such principal amounts as such New Buyer shall request) being purchased by such New Buyer at the Initial Closing pursuant to this Agreement, and delivered (y) the same Initial Warrants (in such amounts as such New Buyer shall request) being purchased by such New Buyer at the Initial Closing pursuant to this Agreement and (C) with respect to the Exchanging Buyers, the Exchange Notes (in such Buyerprincipal amounts as such Buyer shall request).
(ii) The Certificate of Designations, Such Buyer shall have been filed with received the Secretary opinion of State R▇▇▇▇▇▇ & A▇▇▇▇▇▇, LPA, the Company's counsel, dated as of the State Initial Closing Date, in substantially the form of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such BuyerExhibit H attached hereto.
(iii) The Common Stock Company shall be authorized for quotation on The Nasdaq SmallCap Market or have delivered to such Buyer a copy of the Nasdaq National Market or listing on NYSEIrrevocable Transfer Agent Instructions, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares form acceptable to be traded on The Nasdaq SmallCap Marketsuch Buyer, the Nasdaq National Market or NYSE which instructions shall not have been suspended delivered to and acknowledged in writing by the SEC, The Nasdaq Stock Market, Inc. or NYSECompany's transfer agent.
(iv) The representations Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Nevada Secretary of State within ten (10) days of the Initial Closing Date.
(v) The Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary of the Company and warranties dated as of the Initial Closing Date, as to (I) the resolutions consistent with Section 3(b) as adopted by the Company's board of directors in a form reasonably acceptable to such Buyer, (II) the Certificate of Incorporation of the Company and (III) the Bylaws of the Company, each as in effect at the Initial Closing.
(vi) Each and every representation and warranty of the Company shall be true and correct in all material respects (other than representations and warranties that are already qualified by materiality or Material Adverse Effect which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, duly executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered acceptable to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial ClosingBuyer.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing letter from the incorporation and good standing Company's transfer agent certifying the number of shares of Common Stock outstanding on the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of Initial Closing Date immediately prior to the Initial Closing.
(xiviii) The Common Stock (I) shall be designated for quotation or listed (as applicable) on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(ix) The Company shall have delivered obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market and shall have obtained a complete and unconditional waiver from any Person with a right of participation, preemptive right or similar right with respect to such Buyer a secretary's certificate certifying as to (A) any securities of the Resolutions, (B) certified copies Company for the transactions contemplated hereby and for all future securities issuances by the Company or any of its Certificate Subsidiaries.
(x) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority or other Governmental Entity of Incorporation and competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(Cxi) By-lawsSince the date of execution of this Agreement, each as in effect at the Initial Closingno event or series of events shall have occurred that has or reasonably could be expected to have a Material Adverse Effect.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State obtained approval of the State of Delaware within ten days of Principal Market to list or designate for quotation (as the case may be) the Initial Closing DateConversion Shares, the Exchange Conversion Shares and the Initial Warrant Shares.
(xiii) Such Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company, setting forth the wire transfer instructions of the Company.
(xiv) The transactions contemplated by each of the exchange agreements by and between each New Buyer and the Company dated as of the date hereof shall have been consummated concurrently with the Initial Closing.
(xv) In accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent appropriate financing statements on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(xvi) Within two (2) Business Days prior to the Initial Closing, the Company shall have delivered or caused to be delivered to each Buyer (A) certified copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Buyers shall not show any such Liens (as defined in the Security Documents); and (B) a perfection certificate, duly completed and executed by the Company and each of its Subsidiaries, in form and substance satisfactory to the Buyers.
(xvii) The Collateral Agent and such Buyer shall be satisfied that the Collateral Agent has been granted, and holds, for the benefit of the Collateral Agent and such other documents relating Buyer, a perfected, first priority Lien on, and security interest in, all of the Collateral, subject only to Permitted Liens.
(xviii) Such New Buyer shall have received evidence of the cancellation or payment in full of all Indebtedness under the Existing Notes, together with (A) a termination and release agreement with respect to the transactions contemplated Existing Notes and all related documents, duly executed by the Transaction Documents as Company, its Subsidiaries and each of the Exchanging Buyers, in form and substance reasonably acceptable to such Buyer New Buyer, and (B) UCC-3 termination statements for all UCC-1 financing statements filed by one or its counsel may reasonably requestmore Exchanging Buyers and covering any portion of the Collateral.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Notes and the Initial Shares from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived only by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof:
(i) The Each of the Company and its Subsidiaries shall have executed each of the Transaction Documents, Documents to which it is a party (other than any Additional Notes) and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE.
(iv) The representations and warranties of the Company herein shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company and its Subsidiaries shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer includingBuyer, without limitation, including an update as of a date as close to the Initial Closing Date regarding as practicable of the representation representations contained in Section Sections 3(c) and 3(bb) above.
(viii) Such Buyer shall have received (A) the opinion of Gray Burnet, ▇▇▇y ▇▇▇▇▇▇ & Freidenrich ▇▇▇▇▇▇ LLP, dated as of the Initial Closing Date Date, which opinion will address, among other things, laws of the Provinces of Alberta and the federal laws of Canada, including securities laws and laws relating to withholding taxes, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C K attached hereto, (B) the opinion of Goodmans LLP, dated as of the Initial Closing Date, which opinion will address among other things, laws of the Province of Ontario, including securities laws, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit L attached hereto, (C) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated as of the Initial Closing Date, which opinion will address, among other things, laws of the State of Michigan applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit M attached hereto, and (D) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., dated as of the Initial Closing Date, which opinion will address, among other things, laws of the States of Delaware, New York and Texas applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit N attached hereto.
(viiv) The Company shall have executed and delivered to such Buyer the Stock Note Certificates and Share Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Notes and the Initial Shares being purchased by to be issued to such Buyer at the Initial ClosingClosing and Subscription Receipts for the Initial Shares to be issued to such Buyer on each of the dates that are six (6) months, 12 months and 18 months after the Initial Closing Date.
(viiv) The Board Boards of Directors of the Company and its Subsidiaries shall have adopted resolutions consistent with Section 3(b)(ii3(b) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS"“Resolutions”).
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ixvi) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, Instructions shall have been delivered to and acknowledged in writing by the Company's ’s transfer agent, and the Company shall have delivered a copy thereof to such Buyer.
(xvii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's entity’s state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state or jurisdiction of incorporation or organization as of a date within 10 ten (10) days of the Initial ClosingClosing Date.
(xiviii) The Company shall have delivered to such Buyer a secretary's certificate ’s certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Articles of the Corporation, certified copies as of its Certificate a date within ten (10) days of Incorporation the Initial Closing Date, by the Alberta Registrar of Corporations of the Province of Alberta, and (C) By-lawsthe Bylaws, each as in effect at the Initial Closing, (D) the organizational documents of each subsidiary, certified as of a date within ten (10) days of the Initial Closing Date by the applicable governmental authority of the applicable jurisdiction, and (E) the by-laws, limited partnership agreement or limited liability company agreement of each Subsidiary, as the case may be.
(xiiix) The Company shall have made all filings under all applicable U.S. and Canadian federal, state, provincial, territorial and foreign securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(x) The Company shall have delivered to such Buyer a certified copy letter from the Company’s transfer agent certifying the number of its Certificate shares of Incorporation Common Shares outstanding as certified by the Secretary of State of the State of Delaware a date within ten five (5) days of the Initial Closing Date.
(xi) The Company and its Subsidiaries shall have delivered and pledged to such Buyer any and all Instruments, Negotiable Documents, Chattel Paper (each of the foregoing terms, as defined in the Security Agreement) and certificated securities (accompanied by stock powers executed in blank), duly endorsed and/or accompanied by such instruments of assignment and transfer executed by the Company and its Subsidiaries, in such form and substance as such Buyer may request.
(xii) The Company and its Subsidiaries shall have delivered to such Buyer Mortgages with respect to all of the Real Property other than (A) the Real Property comprising the Powder River Basin Assets, (B) the Real Property located in Australia, Canada and the States of California and Kansas, (C) Real Property acquired by the Company in May 2005 for an aggregate acquisition price of less than $250,000 and (D) Real Property acquired since May 31, 2005, for an aggregate acquisition price, together with the aggregate acquisition price of the Real Property referred to in the immediately preceding clause (C), not in excess of $2,000,000.
(xiii) The Company and its Subsidiaries shall have given, executed, delivered, filed and/or recorded any financing statements, notices, instruments, documents, agreements and other papers that may be necessary or desirable (in the reasonable judgment of such Buyer) to create, preserve, perfect or validate the security interest granted to such Buyer pursuant to the Security Agreement and to enable such Buyer to exercise and enforce its rights with respect to such security interest.
(xiv) The Company and Geostar Corporation shall have consummated the Geostar Transaction and the Company shall have provided the Buyers with a valid, perfected first priority security interest in all of the assets acquired in such transaction (save and except the interests in the Powder River Basin in the States of Wyoming and Montana).
(xv) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents this Agreement as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Gastar Exploration LTD)
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and the related Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of Designations, shall have been filed with the Secretary of State of the State of Delaware, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Initial Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. or NYSE and all of the Conversion Shares issuable upon conversion of the Initial Preferred Shares to be sold at the Initial Closing shall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray Winston & ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit EXHIBIT C attached hereto.; and such Buyer shall have received the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. dated as of the Initial Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT F.
(vi) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares Shares, and (ii) the Warrants being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred SharesShares and exercise of the Warrants, at least 923,000 6,000,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 ten days of the Initial ClosingClosing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.
Appears in 1 contract
Initial Closing Date. The obligation of each Buyer hereunder to purchase the Initial Preferred Shares at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion:
(i) The Company shall have executed each of the Transaction Documents, and delivered the same to such Buyer.
(ii) The Certificate of DesignationsDetermination, shall have been filed with the Secretary of State of the State of DelawareCalifornia, and a copy thereof certified by such Secretary of State shall have been delivered to such Buyer.
(iii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market or the Nasdaq National Market or listing listed on AMEX or NYSE, and shall not have been suspended from trading on or delisted from such exchanges (except for a voluntary suspension of not more than one day due to a business announcement by the Company) nor shall delisting or suspension by such exchanges have been threatened (except as set forth in the Common letter to the Company dated February 8, 1999 from the Nasdaq Stock Market, Inc.) either (A) in writing by such exchanges or (B) by falling below the minimum listing maintenance requirements of such exchanges and all of the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Initial Preferred Shares and the related Warrants, as the case may be, to be traded on The Nasdaq SmallCap Market, sold at the Initial Closing shall be listed upon the Nasdaq National Market or NYSE shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc. AMEX or NYSE.
(iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations Determination to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above.
(v) Such Buyer shall have received the opinion of Gray ▇▇▇y ▇▇▇▇ & Freidenrich dated as of the Initial Closing Date in substantially the form of Exhibit C attached hereto.
(vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing.
(vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS").
(viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 923,000 shares of Common Stock.
(ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Initial Closing.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Certificate of Incorporation and (C) By-laws, each as in effect at the Initial Closing.
(xii) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Initial Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by the Transaction Documents as such Buyer or its counsel may reasonably request.Executive
Appears in 1 contract
Sources: Securities Purchase Agreement (Avanir Pharmaceuticals)