Common use of The Second Closing Clause in Contracts

The Second Closing. In the event that any Minority Holders elect to sell (or exercise and sell in the case of Company Warrants) any Minority Shares and Warrants following the Closing Date, Purchaser shall, upon the terms and subject to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders at a second closing (the “Second Closing”), which shall take place on the four (4) week anniversary of the Closing Date at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 1301 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and/or at the offices of Advokatfirman Xxxxx KB, Xxxxxxxxxxxxx 00, XX-00000 Xxxxxxxxx, Xxxxxx in respect of the Closing Deliverables under Section 7.4 below (it being understood that so long as there is at least one Company Warrant outstanding as of the Second Closing, Purchaser shall not be required to conduct the Second Closing unless there is at least one Share remaining outstanding). All documents delivered and actions taken at the Second Closing shall be deemed to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in writing by the Party against whom such waiver is sought to be enforced. The date upon which the Second Closing actually occurs shall be referred to herein as the “Second Closing Date.” Without any further action on the part of the Sellers or Purchaser, automatically upon the Second Closing, Schedule B and Schedule C shall be deemed to be updated to include the names of all Minority Holders who become signatories to this Agreement between the Closing Date and the Second Closing Date in order to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second Closing Date, each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all representations and warranties set forth in Section 3.31 to Section 3.36 shall be true and correct as of the Second Closing Date and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to the Second Closing, shall be reflected in a revised Allocation Certificate to be provided to Purchaser by the Shareholder Representative no later than two (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing with respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow Amount.

The Second Closing. In Upon the event that any Minority Holders elect hiring by the Company of a Chief Executive Officer acceptable to sell Investors holding a majority in interest of the Shares on or before December 31, 1999 (or exercise which acceptance shall be evidenced by a written consent signed by holders of a majority in interest of the Shares) (the "Second Closing Milestone"), the Company shall deliver to each of the Investors a notice (the "Second Closing Notice") of the attainment of the Second Closing Milestone and sell in specifying a date (the case of Company Warrants) any Minority Shares and Warrants following the "Second Closing Date, Purchaser shall, upon ") for the terms and subject to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders at a second closing (the “"Second Closing”)"; the Initial Closing and the Second Closing are referred to individually as a "Closing" and collectively as the "Closings") of the purchase and sales of the number of shares of Series A-2 Preferred Stock listed on Schedule II, which date shall not be less than five or more than 25 days following the date of delivery of the Second Closing Notice. The Second Closing shall take place on the four (4) week anniversary of the Closing Date at the offices of Xxxxxx Xxxxxxx Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx, Professional Corporation, 1301 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and/or at the offices of Advokatfirman Xxxxx KB, Xxxxxxxxxxxxx 00, XX-00000 Xxxxxxxxx, Xxxxxx in respect of the Closing Deliverables under Section 7.4 below (it being understood that so long as there is at least one Company Warrant outstanding as of Xxx Xxxx 00000-0000. At the Second Closing, Purchaser the Company shall not be required deliver to conduct each Investor a certificate representing that number of the Second Closing unless there is at least one Share remaining outstanding). All documents delivered and actions taken at the Second Closing shall be deemed to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in writing by the Party against whom such waiver is sought shares of Series A-2 Preferred Stock to be enforced. The date upon which acquired by such Investor registered in the Second Closing actually occurs shall be referred to herein as the “Second Closing Date.” Without any further action on the part name of the Sellers Investor (and set forth on Schedule II opposite the name of such Investor) against delivery to the Company by wire transfer of immediately available funds in the amount set forth opposite to such Investor's name on Schedule II, or Purchasercancellation of indebtedness, automatically upon or any combination thereof. If, at the Second Closing, Schedule B and Schedule C shall be deemed to be updated to include any of the names conditions specified in Section 4 of all Minority Holders who become signatories to this Agreement between shall not have been fulfilled, each of the Closing Date and Investors shall, at its election, be relieved of its then remaining obligations under this Agreement. Notwithstanding the foregoing, the Investors shall have no obligation to purchase the shares of Series A-2 Preferred Stock set forth on Schedule II if the Second Closing Date in order to sell their Minority Shares Milestone has not occurred on or Minority Warrantsbefore December 31, as applicable. Upon the Second Closing Date, each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all representations and warranties set forth in Section 3.31 to Section 3.36 shall be true and correct as of the Second Closing Date and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to the Second Closing, shall be reflected in a revised Allocation Certificate to be provided to Purchaser by the Shareholder Representative no later than two (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing with respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow Amount1999.

The Second Closing. In The Company’s obligation to complete the event that any Minority Holders elect to sell (or exercise purchase and sell in sale of the case of Company Warrants) any Minority Shares Additional Securities and Warrants following the Closing Date, Purchaser shall, upon the terms and subject deliver certificates representing such securities to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders at a second closing (the “Second Closing”), which shall take place on the four (4) week anniversary of the Closing Date at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 1301 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and/or at the offices of Advokatfirman Xxxxx KB, Xxxxxxxxxxxxx 00, XX-00000 Xxxxxxxxx, Xxxxxx in respect of the Closing Deliverables under Section 7.4 below (it being understood that so long as there is at least one Company Warrant outstanding as of the Second Closing, Purchaser shall not be required to conduct the Second Closing unless there is at least one Share remaining outstanding). All documents delivered and actions taken at the Second Closing shall be deemed subject to have been delivered or taken place simultaneouslythe following conditions, and no such delivery or action shall any one of which may be considered effective or complete unless or until all other such deliveries and actions are completed or waived in writing by the Party against whom Company: (i) receipt by the Company of same-day funds in the full amount of the purchase price for the Additional Securities being purchased hereunder; (ii) the accuracy in all material respects of the representations and warranties made by the Purchaser (as if such waiver is sought to be enforced. The date upon which representations and warranties were made on the Second Closing actually occurs Date) and the fulfillment of those undertakings of the Purchaser to be fulfilled prior to the Second Closing; (iii) the sale of the Additional Securities shall not be referred to herein as prohibited by any law or governmental law or governmental order or regulation; (iv) the Company shall have obtained the requisite stockholder approval via written consent (the “Stockholder Approval”) for the issuance of the Additional Securities at the Second Closing Date.” Without any further action on (together with the part Initial Securities) and the Anti-Dilution Shares in a manner that complies with Section 705 of the Sellers American Stock Exchange Company Guide and all other relevant rules and regulations of the American Stock Exchange; and (v) simultaneously with, or Purchaserprior to, automatically upon the Second Closing, Schedule B the Company shall have sold shares of Common Stock and Schedule C Warrants to third party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum of $11 million, which shares of Common Stock and Warrants shall be deemed sold to such third party purchasers on the same terms and conditions as are set forth herein. The Purchaser’s obligation to accept delivery of such certificates and to pay for the Additional Securities evidenced thereby shall be updated subject to include the names following conditions, any one or more of all Minority Holders who become signatories to this Agreement between which may be waived by the Closing Date and Placement Agent after consultation with the Purchaser: (i) the Company shall have scheduled the Second Closing Date in order for a date on or prior to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second 45th day following the Initial Closing Date, ; (ii) each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all the representations and warranties set forth in Section 3.31 to Section 3.36 of the Company made herein shall be true and correct accurate in all material respects as of the Second Closing Date Date; (iii) the delivery to the Purchaser by counsel to the Company of a legal opinion in a form and all other representations substance reasonably satisfactory to counsel to the Placement Agent; (iv) the Company shall have filed with the Securities and Exchange Commission (the “Commission”) (x) a preliminary information statement at least 11 calendar days prior to the date on which the definitive Information Statement (as defined below) was mailed to security holders and (y) a definitive information statement (the “Information Statement”) at least 20 calendar days prior to the Second Closing Date; (v) the absence of any material adverse change affecting the Company, its financial condition or its results of operations; (vi) the sale of the Sellers Additional Securities shall not be prohibited by such selling Minority Holder shall be true and correct as any law or governmental order or regulation; (vii) the fulfillment in all material respects of those undertakings of the Closing Date. Any adjustments required Company to be made fulfilled prior to the Tax Deposit AccountSecond Closing and (viii) simultaneously with, the Escrow Fundor prior to, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to the Second Closing, the Company shall have sold shares of Common Stock and Warrants to third party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum of $11 million, which shares of Common Stock and Warrants shall be reflected in a revised Allocation Certificate to be provided to Purchaser by the Shareholder Representative no later than two (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments sold to such accounts immediately following third party purchasers on the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing with respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount same terms and Working Capital Escrow Amountconditions as are set forth herein.

The Second Closing. In the event that any Minority Holders elect to sell (or exercise and sell in the case of Company Warrants) any Minority Shares and Warrants following the Closing Date, Purchaser shall, upon the terms and subject to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders at a second closing (the “Second Closing”), which shall take place on the four (4) week anniversary of the Closing Date at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 1301 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and/or at the offices of Advokatfirman Xxxxx KB, Xxxxxxxxxxxxx 00, XX-00000 Xxxxxxxxx, Xxxxxx in respect of the Closing Deliverables under Section 7.4 below (it being understood that so long as there is at least one Company Warrant outstanding as of the Second Closing, Purchaser shall not be required to conduct the Second Closing unless there is at least one Share remaining outstanding). All documents delivered and actions taken at the Second Closing shall be deemed to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in writing by the Party against whom such waiver is sought to be enforced. The date upon which the Second Closing actually occurs shall be referred to herein as the “Second Closing Date.” Without any further action on the part of the Sellers or Purchaser, automatically upon the Second Closing, Schedule B and Schedule C shall be deemed to be updated to include the names of all Minority Holders who become signatories to this Agreement between the Closing Date and the Second Closing Date in order to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second Closing Date, each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all representations and warranties set forth in Section 3.31 to Section 3.36 shall be true and correct as of the Second Closing Date and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to the Second Closing, shall be reflected in a revised Allocation Certificate to be provided to Purchaser by the Shareholder Representative no later than two (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing with respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow Amount.

The Second Closing. In The sale and purchase of the event that any Minority Holders elect 2018 Series A Notes and the 2018 Series B Notes (together, the “2018 Notes”) to sell (or exercise and sell in the case of Company Warrants) any Minority Shares and Warrants following the Closing Date, be purchased by each Purchaser shall, upon the terms and subject to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders thereof shall occur at a second closing (the “Second Closing”)) on April 2, which shall take place on the four (4) week anniversary of the Closing Date 2018 at the offices of Xxxxxxx and Xxxxxx Xxxxxxx Xxxxxxxx & LLP, 000 Xxxx Xxxxxx Xxxxxx, Professional CorporationXxxxxxx, 1301 Avenue of Xxxxxxxx 00000, at 10:00 a.m., Chicago time. The First Closing and the XxxxxxxxSecond Closing are each referred to herein as a “Closing” and, 00xx Xxxxxtogether, Xxx Xxxx, XX 00000 and/or at as the offices of Advokatfirman Xxxxx KB, Xxxxxxxxxxxxx 00, XX-00000 Xxxxxxxxx, Xxxxxx in respect of the Closing Deliverables under Section 7.4 below (it being understood that so long as there is at least one Company Warrant outstanding as of “Closings.” At the Second Closing, the Company will deliver to each Purchaser shall not the 2018 Notes to be required to conduct purchased by such Purchaser in the form of a single Note (or such greater number of 2018 Notes in denominations of at least $100,000 as such Purchaser may request) dated the date of the Second Closing unless there is at least one Share remaining outstandingand registered in such Purchaser’s name (or in the name of its nominee). All documents delivered and actions taken at , against delivery by such Purchaser to the Second Closing shall be deemed Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in writing an account specified by the Party against whom such waiver is sought Company pursuant to be enforcedSection 4.10 hereof. The date upon which the Second Closing actually occurs shall be referred to herein as the “Second Closing Date.” Without any further action on the part of the Sellers or Purchaser, automatically upon If at the Second Closing, Schedule B and Schedule C the Company shall fail to tender such 2018 Notes to any Purchaser as provided above in this Section 3.2, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s reasonable satisfaction, such Purchaser shall, at its election, be deemed to be updated to include the names relieved of all Minority Holders who become signatories further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure by the Company to this Agreement between tender such 2018 Notes or any of the Closing Date and the Second Closing Date in order to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second Closing Date, each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all representations and warranties set forth conditions specified in Section 3.31 to Section 3.36 shall be true and correct as of the Second Closing Date and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to the Second Closing, shall be reflected in a revised Allocation Certificate to be provided to Purchaser by the Shareholder Representative no later than two (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments 4 not having been fulfilled to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing with respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow AmountPurchaser’s reasonable satisfaction.

The Second Closing. In the event that any Minority Holders elect Subject to sell (or exercise and sell in the case of Company Warrants) any Minority Shares and Warrants following the Closing Date, Purchaser shall, upon the terms and subject to the conditions of this Agreement, the Company agrees to issue and sell to the Purchasers, and the Purchasers agree to purchase from the Shares and Company Warrants Company, at an aggregate purchase price of such Minority Holders at a second closing $30,000,000 (the “Second ClosingClosing Purchase Price”), which shall take place an aggregate of 2,000,000 shares of Common Stock (the “Second Closing Shares”), and warrants to purchase up to an aggregate of 6,000,000 shares of Common Stock in accordance with the schedule attached hereto as Schedule A-2, such warrants having the exercise prices set forth on Schedule B and being in the four form attached hereto as Exhibit C (4) week anniversary the “Warrants”). The closing of the Closing Date at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 1301 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and/or at the offices of Advokatfirman Xxxxx KB, Xxxxxxxxxxxxx 00, XX-00000 Xxxxxxxxx, Xxxxxx in respect of the Closing Deliverables under Section 7.4 below (it being understood that so long as there is at least one Company Warrant outstanding as such sale and purchase of the Second Closing Shares and the Warrants is referred to herein as the “Second Closing, Purchaser shall not be required to conduct ” and the Second Closing unless there is at least one Share remaining outstanding). All documents delivered and actions taken at the Second Closing shall be deemed to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in writing by the Party against whom such waiver is sought to be enforced. The date upon on which the Second Closing actually sale and purchase occurs shall be is referred to herein as the “Second Closing Date.” Without any further action The Second Closing and the Initial Closing are collectively referred to as the “Closings” and the date of the Second Closing and the Initial Closing are collectively referred to as the “Closing Dates.” The Second Closing shall be held at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (or remotely via the exchange of signatures and documents) on the part second Business Day following the first date on which all the conditions to the Second Closing set forth in Section 7 have been satisfied or waived, or at such other place, time and date as the Company and Purchasers shall agree. The Company shall give the Purchasers three (3) Business Days’ prior notice of the Sellers or Purchaser, automatically upon date the Second Closing is scheduled to occur. At the Second Closing, Schedule B subject to the terms and Schedule C shall be deemed to be updated to include the names of all Minority Holders who become signatories to this Agreement between the Closing Date and the Second Closing Date in order to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second Closing Date, each such selling Minority Holder will be deemed to be a “Seller” for all purposes conditions of this Agreement and all representations and warranties set forth in Section 3.31 to Section 3.36 shall be true and correct as of the Second Closing Date and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to the Second Closing, shall be reflected in a revised Allocation Certificate to be provided to Purchaser by the Shareholder Representative no later than two (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing with respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow Amount.Agreement: