Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction satisfaction, at or before the applicable Additional 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 by providing the Company with prior written notice thereof:
(i) The Company and each of its Subsidiaries shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents, (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at such Additional Closing pursuant to this Agreement and (C) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at such Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the opinion of Sxxxx & Wxxxxx L.L.P., the Company's outside counsel, dated as of such Additional Closing Date, in substantially the form of Exhibit G attached hereto.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit F attached hereto, which instructions shall have been 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 U.S. Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or waivercomparable office) of such jurisdiction or a bring down of such good standing from Incorporating Services, Ltd., as of a date within ten (10) days of such Additional Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the Company's and each of its U.S. Subsidiaries' qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and its U.S. Subsidiaries conduct business or a bring down of such good standing from Incorporating Services, Ltd., as of a date within ten (10) days of such Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of its U.S. Subsidiaries (other than the Subsidiaries formed in the State of Florida) as certified by the Secretary of State (or comparable office) of the conditions set forth in Sections 6(bjurisdiction of formation of the Company and each of its Subsidiaries within ten (10) and 7(b) below, until April 30, 2018 (the "Business Days of such Additional Closing Deadline"), each Buyer Date.
(vii) The Company shall have delivered to such Buyer a certificate, executed by the right, at such Buyer's sole option, to require Secretary of the Company and dated as of such Additional Closing Date, as to issue (i) the resolutions consistent with Section 3(b) as adopted by the Company's and sell each of its Subsidiaries' Board of Directors in a form reasonably acceptable to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that Certificate of Incorporation of the Company will be required to sell and each of its Subsidiaries and (iii) the Bylaws of the Company and each of its Subsidiaries, each as in effect at such Additional Notes Closing, in the form attached hereto as Exhibit H.
(viii) The representations and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery warranties of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall be true and correct in all material respects (iexcept for those representations and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects) be required to sell to as of the date when made and as of such Buyer, Additional Closing Date as though made at that time (except for representations and such Buyer warranties that speak as of a specific date which shall be required to purchase from the Companytrue and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, the aggregate principal amount which are accurate in all respects) as of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (iispecified date) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date". Such Buyer shall have received a certificate, and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to executed by the Buyers and Chief Executive Officer of the Company). The location , dated as of such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit I.
(ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock issued and outstanding as of a date within five (5) days of such Additional Closing Date.
(x) The Common Stock (I) shall be at designated for quotation or listed on the offices Principal Market and (II) shall not have been suspended, as of Sxxxxxx Rxxx & Zxxxx LLPsuch Additional Closing Date, 900 Xxxxx Xxxxxxby 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, Xxx Xxxxas of such Additional Closing Date, Xxx Xxxx 00000either (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 each Buyer the Lock-up Agreements executed and delivered by each of the Persons listed on Schedule 7(a)(xi).
(xii) The Company shall have obtained all governmental, regulatory, corporate or third party consents and approvals, if any, necessary for the sale of the Securities.
(xiii) The Company shall have submitted to the Principal Market a Listing of Additional Shares notification in connection with the transactions contemplated hereby and the Principal Market shall have approved, orally or in writing, the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities.
(xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.), Securities Purchase Agreement (Net Element, Inc.)
Additional Closing Date. Subject The obligation of each Buyer ----------------------- hereunder to purchase the Additional Preferred Shares at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before each of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline")Date, of each Buyer shall have of the rightfollowing conditions, at such provided that these conditions are for each Buyer's sole option, to require the Company to issue benefit and sell to such Buyer, and may be waived by such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name at any time in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth its sole discretion:
(i) the aggregate principal amount The Certificate of Additional Notes Designations, shall be in full force and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount effect and shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on have been amended, without the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (knowledge or waiver) consent of the conditions set forth in Sections 6(b) and 7(b) belowBuyers, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and since the Initial Closing Date, each and a "Closing Date"copy thereof certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer.
(ii) The Common Stock shall be 10:00 a.m., New York City time, designated for quotation on The Nasdaq SmallCap Market or The Nasdaq National Market or listed on the date specified 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 applicable Buyer Additional Closing Notice (or minimum listing maintenance requirements of such other date exchanges and time as is mutually agreed to by all of the Buyers Conversion Shares and the Company). The location Warrant Shares issuable upon conversion or exercise of such the Additional Preferred Shares and the related Warrant, as the case may be, to be sold at the Additional Closing shall be listed upon The Nasdaq National Market or the NYSE.
(iii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect which also shall include an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above.
(iv) Such Buyer shall have received the opinion of Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx dated as of the Additional Closing Date in substantially the form of Exhibit C attached hereto. ---------
(v) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates for the Additional Preferred Shares and the related Warrants being purchased by such Buyer at the offices Additional Closing.
(vi) The Board of Sxxxxxx Rxxx & Zxxxx LLPDirectors of the Company shall have adopted, 900 Xxxxx Xxxxxxand shall not have amended, Xxx Xxxxthe Resolutions.
(vii) As of the Additional Closing Date, Xxx Xxxx 00000the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares (without regard to any limitations on conversions) and 100% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants, including for such purposes the Additional Preferred Shares and related Warrants to be issued at such Additional Closing.
(viii) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged --------- in writing by the Company's transfer agent and Shall be in effect as of the Additional Closing.
(ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Additional Closing Date.
(x) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten days of the Additional Closing Date.
(xi) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) By-laws, each as in effect at the Additional Closing.
(xii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date.
(xiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Medcare Technologies Inc), Securities Purchase Agreement (Medcare Technologies Inc)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase Additional Notes and the Shares from the Company at any Additional Closing is subject to the satisfaction, at or before the Additional 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 discretion by providing the Company with prior written notice thereof:
(i) The Initial Closing shall have occurred.
(ii) The representations and warranties of the Company herein (including any exceptions thereto contained in the schedules hereto) shall be true and correct as of the date when made and as of such Additional 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), provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company and its Subsidiaries shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Additional Closing Date, to the foregoing effect (including with respect to the satisfaction (or waiver) of the conditions set forth in Sections 6(bSection (b)(ii)) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at as to such Buyer's sole option, to require the Company to issue and sell to other matters as may be reasonably requested by such Buyer, and such Buyer shall have the right, to purchase from the Company up to including an aggregate principal amount of Additional Notes and related Additional Warrants update as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(h), 3(i), 3(o), 3(s), 3(t), 3(v), 3(y) and 3(aa) hereto.
(iii) The Company shall have executed and delivered to such Buyer the Notes and the Share Certificates (in such denominations as such Buyer shall request) for the Additional Notes and the Shares to be issued to such Buyer at such Additional Closing.
(iv) The Company shall have delivered to such Buyer a certificate evidencing the offices incorporation and good standing of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000the Company and each Subsidiary in such 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 ten (10) days of the Additional Closing Date.
(v) The Company shall have made all filings under all applicable U.S. federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(vi) The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Cumulus Investors LLC), Securities Purchase Agreement (Averion International Corp.)
Additional Closing Date. Subject (i) The date and time of the Additional Closings (the “Additional Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 10:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) belowand the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the Company and the applicable Buyer).
(ii) Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), until April 30, 2018 following (x) the delivery of a certificate of the Company in the form attached hereto as Exhibit L (the "Additional Closing Deadline"“MECAR Certificate”), each Buyer certifying that the MECAR Contract (I) has been duly executed and delivered by the parties thereto (the date of the execution thereof, the "MECAR Execution Date”) and (II) is a validly binding and enforceable agreement of the parties thereto and (y) the public announcement of the execution of the MECAR Contract (as defined in the MECAR Certificate) and the filing of the MECAR Certificate as an exhibit to a filing by the Company with the SEC, at any time prior to the Escrow Termination Date, the Company shall have the rightright to require each Buyer to purchase, at such Buyer's sole optionone Closing, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as is set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's ’s name in column (3)(b6) on the Schedule of Buyers and which aggregate number of (as provided by the Company, a “Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date Closing Notice”); provided, that if the Company will be required elects to sell such Additional Notes and related Additional Warrants to such Buyer (each, deliver a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than to any Buyer, it must deliver an identical Additional Closing Notice to all Buyers. Any Additional Closing Notice delivered by the Company shall be irrevocable. Notwithstanding anything herein to the contrary, at any time on or after the MECAR Execution Date, upon the Company’s receipt of one or more written notices by the holders of a majority of the Notes then outstanding, in the aggregate, electing to cause the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Noticeoccur, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose thereafter deliver Additional Closing Notices to the delivery by a Buyer of a Buyer Buyers. Each Additional Closing Notice on shall contain a Current Report on Form 8-K. The date and time of each applicable proposed Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") Date that shall be 10:00 a.m., New York City time, on at least five (5) Business Days but not more than ten (10) Business Days following the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of delivery of such Additional Closing Notice to the Buyers. Each Additional Closing Notice shall set forth (i) the principal amount of Additional Notes to be purchased by each Buyer at the offices Additional Closing and (ii) the proposed Additional Closing Date. As used herein, “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000New York are authorized or required by law to remain closed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Allied Defense Group Inc)
Additional Closing Date. Subject The date and time of the Additional Closing (the “Additional Closing Date”) shall be 10:00 a.m., New York time, on the six month anniversary of the Initial Closing Date (or such later date as is mutually agreed to by the Company and each Buyer). If on the fifteenth calendar day immediately prior to the satisfaction Additional Closing Date (the “Additional Closing Eligibility Date”) (x) the Market Price (as defined in the Initial Notes) on the Trading Day (as defined in the Initial Notes) immediately prior the Additional Closing Eligibility Date and on each Trading Day during the period commencing on the Additional Closing Eligibility Date and ending and including the Trading Day immediately prior to the Additional Closing Date exceeds $2.00 (as adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions), (y) on or prior to the Additional Closing Date, the Company has satisfied (or waiverthe Buyers have waived) of the conditions to such Closing set forth in this Section 1(b)(ii) and Sections 6(b) and 7(b) below, until April 30, 2018 below and (z) there has been no Equity Conditions Failure (as defined in the "Additional Closing Deadline"Initial Notes), each Buyer the Company shall have the right, at such Buyer's sole option, right to require the Company to issue and sell to such Buyer, and such each Buyer shall have the right, to purchase from an Additional Note in the Company up to an aggregate original principal amount not in excess of Additional Notes and related Additional Warrants as the amount set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's ’s name in column (3)(b4) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer “Maximum Additional Closing"Note Amount”), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject Subject to the satisfaction (or waiver) of the conditions to closing set forth in this Section 1(b)(ii) and Sections 6(b) and 7(b) below, the Company may exercise its right to require an Additional Closing by delivering on the Additional Closing Eligibility Date a written notice thereof by facsimile and overnight courier to all, but not less than all, of the holders of Initial Notes (the “Additional Closing Notice” and the date all of the holders received such notice by facsimile is referred to as the “Additional Closing Notice Date”). The Additional Closing Notice shall be irrevocable. The Additional Closing Notice shall (iA) be required to sell to such Buyerspecify the Additional Closing Date, and such Buyer shall be required to purchase from the Company, (B) specify the aggregate principal amount of Additional Notes and related Additional Warrants set forth in to be purchased by such Buyer at the Buyer Additional Closing Notice and (C) certify that the Market Price on the date Trading Day immediately prior the Additional Closing Eligibility Date exceeds $2.00 (as adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions) and (D) certify that there has been no Equity Conditions Failure; provided, however, that the Company may not require any Buyer to purchase Additional Notes in excess of the applicable Buyer Maximum Additional Closing set forth in Note Amount of such Buyer Additional Closing Notice and (ii) within one (1) Business Day Buyer. For the avoidance of receipt of a Buyer Additional Closing Notice from a Buyerdoubt, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer not be entitled to effect an Additional Closing Notice if on a Current Report on Form 8-K. The date and time of each applicable the Additional Closing (each, Date there is an "Equity Conditions Failure or the Market Price on the Trading Day immediately prior the Additional Closing Date"Date does not exceed $2.00 (as adjusted for any stock splits, and together with all Additional Closing Dates and the Initial Closing Datestock dividends, each a "Closing Date") shall be 10:00 a.m.stock combinations, New York City time, on the date specified in the applicable Buyer Additional Closing Notice (recapitalizations or such other date and time as is mutually agreed to by the Buyers and the Companysimilar transactions). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Appears in 1 contract
Samples: Securities Purchase Agreement (Odyssey Marine Exploration Inc)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Notes and the related Warrants at the each Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before such Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each Buyer’s sole benefit and may be waived by such Buyer at any time in Sections 6(bits sole discretion 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 7(bdelivered to such Buyer the Additional Notes (in such principal amounts as such Buyer shall request) below, until April 30, 2018 (the "being purchased by such Buyer at such Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such Buyer shall have received the rightopinion of Osler, Xxxxxx & Harcourt LLP, the Company’s outside counsel, dated as of the each Additional Closing Date, in substantially the form of Exhibit E attached hereto.
(iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, which instructions shall have been 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 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 such Additional 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 such Additional Closing Date.
(vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of such Additional Closing Date, as to (A) the Certificate of Incorporation and (B) the Bylaws, each as in effect at such Buyer's sole optionAdditional Closing, to require 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 such Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to issue and sell be performed, satisfied or complied with by the Company at or prior to such Buyer, and such Additional Closing Date. Such Buyer shall have received a certificate, executed by the rightChief Executive Officer of the Company, dated as of such Additional Closing Date, to purchase the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit G.
(viii) The Company shall have delivered to such Buyer a letter from the Company up to an aggregate principal amount Company’s transfer agent certifying the number of Additional Notes and related Additional Warrants shares of Common Stock outstanding as set forth opposite of a date within five days of such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice"Date.
(ix) to the Company setting forth The Common Stock (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) be listed on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers Principal Market and (ii) the date that the Company will be required to sell shall not have been suspended, as of such Additional Notes and related Additional Warrants to such Buyer (eachClosing Date, a "Buyer Additional Closing")by the SEC, which date the CSA or the Principal Market from trading on the Principal Market nor shall not be less than one (1) Trading Day after delivery suspension by the SEC, he CSA or the Principal Market have been threatened, as of such Buyer Additional Closing Notice and not later than Date, either (A) in writing by the Additional Closing Deadline. No Buyer shall be entitled to cause SEC, the Company to consummate more than one CSA or the Principal Market or (1B) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to by falling below the satisfaction (or waiver) minimum listing maintenance requirements of the conditions set forth in Sections 6(bPrincipal Market.
(x) and 7(b) below, the The Company shall (i) be required to sell to such Buyerhave obtained all governmental, regulatory or third party consents and such Buyer shall be required to purchase from approvals, if any, necessary for the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date sale of the applicable Buyer Additional Notes.
(xi) No Event of Default (as defined in the Notes) shall have occurred and be continuing.
(xii) The approval of the Principal Market for the issuance of the Securities issuable on such Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers Date and the Company conditional listing of the Conversion Shares, Warrant Shares and Interest Shares on the Principal Market shall within one (1) Business Day after any such delivery publicly disclose have remained continuously in effect from the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date.
(xiii) The Company shall have duly executed and delivered to such Buyer an additional Hypothec Agreement with respect to the Additional Notes, each a "Closing Date") substantially in the form attached hereto as Exhibit H, but which shall be 10:00 a.m., New York City time, on the date specified limited in the applicable amount to CDN$6 million.
(xiv) The Company shall have delivered to such Buyer Additional Closing Notice (or such other date and time documents relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000Buyer or its counsel may reasonably request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Art Advanced Research Technologies Inc)
Additional Closing Date. Subject to timely delivery by the satisfaction (or waiver) Company to the Buyers of the conditions set forth in Sections 6(b) Additional Note Notice (as defined below), the date and 7(b) below, until April 30, 2018 time of the Additional Closing (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City timeTime, on the date specified in the applicable Buyer Additional Note Notice, subject to satisfaction (or waiver) of the conditions to the Additional Closing Notice set forth in Sections 6(b) and 7(b) and the conditions set forth in this Section 1(c) (or such other later date and time as is mutually agreed to by the Buyers Company and the CompanyBuyers). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), the Company shall issue and sell to such Buyer on one occasion $5,000,000 principal amount of Additional Notes on the Additional Closing Date, which date shall be 3 Business Days after delivery by the Company of written notice to such Buyer (the "Additional Note Notice") setting forth the satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 6(b) and 7(b) and the conditions set forth in this Section 1(c). The location Additional Note Notice shall be delivered by the Company (the date of delivery, the "Additional Note Notice Date") within 3 Business Days after satisfaction (or waiver) of such conditions. If the Company fails to deliver such notice, or at any time that the applicable Buyer waives any remaining conditions set forth in this Section 1(c), in Section 7(b) or otherwise, such Buyer shall be entitled to compel the Additional Closing by delivering a notice to the Company to such effect. Notwithstanding anything in this Agreement to the contrary, the Company shall not be entitled to require the purchase of the Additional Notes unless, in addition to the requirements of Sections 6(b) and 7(b), all of the following conditions are satisfied (or waived): (i) on each day during the period beginning on the first day of the Measuring Period (as defined below) and ending on the Additional Closing Date, the Initial Registration Statement (as defined in the Registration Rights Agreement) covering the Initial Registrable Securities (as defined in the Registration Rights Agreement) shall be effective and available for the sale of at least all of the offices of Sxxxxxx Rxxx & Zxxxx LLPInitial Registrable Securities required to be included in such Initial Registration Statement and there shall not have been any Grace Periods (as defined in the Registration Rights Agreement); (ii) on each day during the period beginning on the date hereof and ending on the Additional Closing Date, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.the
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) The date and time of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 Additional Closing (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", ," and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in Trading Day immediately following the applicable Buyer Additional six (6) month anniversary of the Initial Closing Notice Date (or if the six (6) month anniversary of the Initial Closing Date is not a Trading Day, the second (2nd) Trading Day following such six (6) month anniversary) (or, in any case, such other date and time as is mutually agreed to by the Buyers each Buyer and the Company), subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(d). On the day that all Initial Preferred Shares have been redeemed or converted in full, the Company shall deliver a written notice to each of the Buyers indicating such fact. Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(d), each Buyer shall purchase, and the Company shall sell to each such Buyer the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in column 3(b) and column 4(b) of the Schedule of Buyers, respectively. If the Company has not satisfied one or more conditions to the Additional Closing, subject to the conditions set forth in Section 6(b), each Buyer may elect, by written notice to the Company, to waive any such condition or conditions, and may elect to purchase all or any portion of the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in the immediately preceding sentence. The location of such the Additional Closing shall be at the offices of Sxxxxxx Rxxx Xxxxxxx Xxxx & Zxxxx Xxxxx LLP, 900 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Notwithstanding anything herein to the contrary, if the Additional Closing does not occur by the third (3rd) Trading Day immediately following the six (6) month anniversary of the Initial Closing Date (or such other date as is mutually agreed to by each Buyer and the Company) (the "Additional Closing Termination Date"), then (i) the Company’s obligation to sell any Additional Preferred Shares and Additional Warrants, and the Buyer’s obligation to purchase such Additional Preferred Shares and Additional Warrants shall terminate, and (ii)any "lock-up" or similar provisions contained in (a) Section 4(o)(ii) below, (b) Section 2(a)(xxiv)(J), the first sentence of Section 11, the third, fourth and sixth sentences of Section 12, Section 14(c), and Section 14(e) of the Certificate of Designations, and (c) in each of the Lock-Up Agreements (as defined below) (collectively, the "Lock-Up Provisions") shall be deemed to have expired on the Additional Closing Termination Date. In addition, if pursuant to this paragraph the Buyers, in the aggregate, elect to purchase less than 4,000 Additional Preferred Shares at the Additional Closing, (i) the Company's obligation to sell any Additional Preferred Shares and Additional Warrants not elected to be purchased, and the Buyer's obligation to purchase such Additional Preferred Shares and Additional Warrants, shall terminate, and (ii) the Lock-Up Provisions shall be deemed to have expired on the Additional Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Oxygen Biotherapeutics, Inc.)
Additional Closing Date. Subject to If, after the satisfaction (Initial Closing Date and on or waiver) before the Termination Date, proceeds are received for additional sales of Shares, and if the conditions set forth in Sections 6(b) and 7(b) belowherein have been satisfied or waived, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers you and the Company shall within one determine the date (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date"), time and together place at which each additional closing of the sale of Shares shall occur and provide the Escrow Agent with all at least two business days advance notice of each Additional Closing Date (the Initial Closing Date and each Additional Closing Dates and the Initial Closing Date, are herein referred to each as a "Closing Date"). On each Additional Closing Date the Escrow Agent will notify you and the Company of: (i) shall the amount received for subscriptions for Shares that was on deposit in the Escrow Account for at least three business days prior to the Additional Closing Date (the "Additional Subscription Proceeds"), (ii) any volume discounts applicable to those Additional Subscription Proceeds, (iii) the amount of accrued interest on the Additional Subscription Proceeds, and (iv) any then unpaid escrow fees and expenses. On each Additional Closing Date, the Escrow Agent shall: (x) deliver to you by wire transfer in immediately available funds, as payment of the amounts owed to you pursuant to Sections 27.(a) and (b), an amount equal to ten and one half percent (10.5%) of the Additional Subscription Proceeds grossed up for any applicable volume discounts, minus any volume discounts applicable to those Additional Subscription Proceeds; and (y) deliver to the Company by wire transfer in immediately available funds an amount equal to the balance of the Additional Subscription Proceeds minus any then unpaid escrow fees and expenses. The Escrow Agent will be 10:00 a.m., New York City timedirected to distribute the aggregate accrued interest on the funds held in the Escrow Account to the purchasers of the Shares, on a pro rata basis, calculated based on the date specified number of days each purchaser's cleared funds are held in escrow, without reduction for any fees and reimbursements to be paid to the Escrow Agent and subject to the applicable Buyer Additional Closing Notice withholding provisions of the Internal Revenue Code. You will, upon your receipt from the Escrow Agent of funds pursuant to this Section 2.6, deliver (or such other date and time as is mutually agreed cause to be delivered) to the Selected Dealers, by wire transfer in immediately available funds, an amount equal to the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000selling commissions payable to them.
Appears in 1 contract
Samples: Selling Group Manager Agreement (United Mortgage Trust)
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable the First Additional Closing (each, an "the “First Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date"”) shall be 10:00 a.m., New York City time, on the date specified June 15, 2012 (or, in the applicable Buyer Additional Closing Notice (or any case, such other date and time as is mutually agreed to by the Buyers each Buyer and the Company), and the date and time of the Second Additional Closing (the “Second Additional Closing Date”, and together with the First Additional Closing Date, each an “Additional Closing Date”) shall be 10:00 a.m., New York City time, on September 14, 2012 (or, in any case, such other date and time as is mutually agreed to by each Buyer and the Company), in each case subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(d). The Initial Closing Date, the First Additional Closing Date, and the Second Additional Closing Date are each referred to herein as a “Closing Date”, and, whenever the context requires, each reference in this Agreement to “the Additional Closing Date” or words of like import shall mean and be a reference to “the applicable Additional Closing Date.” Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(d), on (i) the First Additional Closing Date, each Buyer shall purchase, and the Company shall sell to each such Buyer the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in column 3(b) and column 4(b) of the Schedule of Buyers, respectively, and (ii) the Second Additional Closing Date, each Buyer shall purchase, and the Company shall sell to each such Buyer the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in column 3(c) and column 4(c) of the Schedule of Buyers, respectively. If the Company has not satisfied one or more conditions to the applicable Additional Closing, subject to the conditions set forth in Section 6(b), each Buyer may elect, by written notice to the Company to waive any such condition or conditions, and may elect to purchase all or any portion of the Additional Preferred Shares and Additional Warrants contemplated to be purchased by such Buyer as set forth in the immediately preceding sentence. The location of such each Additional Closing shall be at the offices of Sxxxxxx Rxxx Xxxxxxx Xxxx & Zxxxx Xxxxx LLP, 900 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Notwithstanding anything herein to the contrary, if the Second Additional Closing does not occur by September 30, 2012 (or such other date as is mutually agreed to by each Buyer and the Company) (x) but the Company has granted the Option (as defined below) to the Buyers by such date, then on September 30, 2012 (or such other date as is mutually agreed to by each Buyer and the Company) or (y) and the Company has not granted the Option to the Buyers by such date, then on December 31, 2012 (or such other date as is mutually agreed to by each Buyer and the Company) (the “Second Additional Closing Termination Date”) (i) the Company’s obligation to sell any Additional Preferred Shares and Additional Warrants, and the Buyer’s obligation to purchase such Additional Preferred Shares and Additional Warrants, shall terminate, and (ii) any “lock-up” or similar provisions contained in (a) Section 4(o)(ii) below, (b) Section 2(a)(xxiv)(J), the first sentence of Section 11, the third, fourth and sixth sentences of Section 12, Section 14(c), and Section 14(e) of the Certificate of Designations, and (c) in each of the Lock-Up Agreements (as defined below) (collectively, the “Lock-Up Provisions”) shall be deemed to have expired on the Second Additional Closing Termination Date. In addition, if pursuant to this paragraph the Buyers, in the aggregate as of the Second Additional Closing Date, have elected to purchase less than an aggregate of 1,500 Additional Preferred Shares at the Second Additional Closing, (i) the Company’s obligation to sell any Additional Preferred Shares and Additional Warrants not elected to be purchased, and the Buyer’s obligation to purchase such Additional Preferred Shares and Additional Warrants, shall terminate, and (ii) the Lock-Up Provisions shall be deemed to have expired on the Second Additional Closing Date.”
(c) Section 4(o)(ii) of the Purchase Agreement is hereby deleted in its entirety and amended and restated as follows: “From the date hereof until the later of (i) one hundred and twenty (120) days immediately following the First Additional Closing Date and (ii) December 31, 2012 in the event the Company has not granted the Option to the Buyers by September 30, 2012 (the “Trigger Date”), the Company will not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”), or be party to any solicitations or negotiations with regard to the foregoing.”
(d) Section 4(p) of the Purchase Agreement is hereby amended to replace the reference to “October 15, 2012” in the first sentence with “September 14, 2012”.
(e) Section 7(b)(xv) of the Purchase Agreement is hereby deleted in its entirety and amended and restated as follows:
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of the Additional Closings (each applicable Additional Closing (each, an "Additional Closing Date", ," and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date" and collectively, the "Closing Dates") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (as defined below), subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(c) (or such other later date and time as is mutually agreed to by the Buyers Company and the Companyapplicable Buyer). The location Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), each Buyer may purchase (provided that such Buyer was a Buyer under this Agreement on the date hereof and such Buyer holds all of the Preferred Shares purchased hereunder at the time of such Additional Closing), at such Buyer's option, Additional Preferred Shares by delivering written notice to the Company (an "Additional Closing Notice") at any time during the period beginning after the date hereof and ending on the date one hundred and twenty (120) days after the Initial Closing Date (the "Additional Closing Expiration Date"), which Additional Closing Expiration Date may be extended at the option of the Company to a date not later than one hundred and eighty (180) days after the Initial Closing Date. The Additional Closing Notice shall be delivered at least ten (10) Business Days prior to the applicable Additional Closing Date set forth in such Additional Closing Notice. An Additional Closing Notice shall set forth (i) the number of Additional Preferred Shares to be purchased by such Buyer at the offices Additional Closing, which number of Sxxxxxx Rxxx & Zxxxx LLPshares shall not exceed the number of Additional Preferred Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers, 900 Xxxxx Xxxxxx(ii) the aggregate Additional Purchase Price for the Additional Preferred Shares to be purchased and (iii) the proposed Additional Closing Date. As used herein, Xxx Xxxx"Business Day" means any day other than Saturday, Xxx Xxxx 00000Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable any Additional Closing (each, an "“Additional Closing Date"” and, and together with all Additional Closing Dates and the Initial Closing Date, each a "“Closing Date"”) shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer any Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to by the Buyers Company and the Buyer(s) delivering such Additional Closing Notice), provided that, unless waived by the Company, any Additional Closing Notice must be delivered to the Company no later than five (5) Business Days after the date the Company publicly files a registration statement with respect to the Rights Offering. If one or more Buyers elects to purchase Additional Notes, each such Buyer shall deliver a written notice (the “Additional Closing Notice”) to the Company indicating (1) the applicable Additional Closing Date, which shall not be less than three (3) Business Days (as defined below) from the date of the receipt of such notice by the Company, (2) the aggregate principal amount of Additional Notes such Buyer has elected to purchase and (3) the Additional Cash Purchase Price and Additional Share Purchase Price (each as defined in Section 1(c)) to be paid by such Buyer to the Company in exchange for the Additional Notes to be purchased. Any Additional Closing shall be subject to the satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 6(b) and 7(b) below as provided therein. The location of such any Additional Closing shall be at the offices of Sxxxxxx Rxxx Xxxxxxx Xxxx & Zxxxx Xxxxx LLP, 900 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable any Additional Closing (each, an "“Additional Closing Date", ” and together collectively with all Additional the Initial Closing Dates Date and the Initial Series B Warrant Closing Date, each a "“Closing Date"”) shall be 10:00 8:00 a.m., New York City time, on the date specified in the applicable Buyer any Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to in writing (including, for these purposes, by electronic mail) by the Buyers Company and the CompanyDesignee) after notification of satisfaction (or waiver) of the conditions to such Additional Closing set forth in Sections 6(c) and 7(c) below. The Company shall deliver a written notice to the Designee setting forth the date it intends to publicly announce an Approved Investment, which announcement date shall at least be four (4) Business Days (as defined below) from the date the Designee receives such notice. If the Designee elects, in its sole and absolute discretion, to cause one or more of its Affiliates, each of which shall then become a “Buyer” hereunder pursuant to Section 9(g), to purchase Notes, such Buyer shall deliver a written notice (the “Additional Closing Notice”) to the Company prior to the public announcement by the Company of the applicable Approved Investment indicating (1) the aggregate principal amount of Notes such Buyer has elected to purchase which shall not exceed the Maximum Amount and (2) the date of such Additional Closing, which shall occur concurrently with the closing of the applicable Approved Investment. The location of such any Additional Closing shall be at the offices of Sxxxxxx Rxxx Xxxxxxx Xxxx & Zxxxx Xxxxx LLP, 900 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The location of each Additional Closing may be undertaken remotely by electronic transfer of Closing documentation upon mutual agreement among the Company and the Buyers.
Appears in 1 contract
Samples: Securities Purchase Agreement (Acacia Research Corp)
Additional Closing Date. Subject (i) The date and time of the Additional Closings (the “Additional Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 10:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) belowand the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the Company and the applicable Buyer).
(ii) Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), until April 30, 2018 following (x) the delivery of a certificate of the Company in the form attached hereto as Exhibit L (the "Additional Closing Deadline"“MECAR Certificate”), each Buyer certifying that the MECAR Contract (I) has been duly executed and delivered by the parties thereto (the date of the execution thereof, the “MECAR Execution Date”) and (II) is a validly binding and enforceable agreement of the parties thereto and (y) the public announcement of the execution of the MECAR Contract (as defined in the MECAR Certificate) and the filing of the MECAR Certificate as an exhibit to a filing by the Company with the SEC, at any time prior to the Escrow Termination Date, the Company shall have the rightright to require each Buyer to purchase, at such Buyer's sole optionone Closing, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as is set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's ’s name in column (3)(b6) on the Schedule of Buyers and which aggregate number of (as provided by the Company, a “Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date Closing Notice”); provided, that if the Company will be required elects to sell such Additional Notes and related Additional Warrants to such Buyer (each, deliver a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than to any Buyer, it must deliver an identical Additional Closing Notice to all Buyers. Any Additional Closing Notice delivered by the Company shall be irrevocable. Notwithstanding anything herein to the contrary, at any time on or after the MECAR Execution Date, upon the Company’s receipt of one or more written notices by the holders of a majority of the Notes then outstanding, in the aggregate, electing to cause the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Noticeoccur, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose thereafter deliver Additional Closing Notices to the delivery by a Buyer of a Buyer Buyers. Each Additional Closing Notice on shall contain a Current Report on Form 8-K. The date and time of each applicable proposed Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") Date that shall be 10:00 a.m., New York City time, on at least five (5) Business Days but not more than ten (10) Business Days following the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of delivery of such Additional Closing Notice to the Buyers. Each Additional Closing Notice shall set forth (i) the principal amount of Additional Notes to be purchased by each Buyer at the offices Additional Closing and (ii) the proposed Additional Closing Date. As used herein, “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000New York are authorized or required by law to remain closed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Allied Defense Group Inc)
Additional Closing Date. Subject The date and time of the Additional Closings (each, an "ADDITIONAL CLOSING DATE," and together with the Initial Closing Date, each or "CLOSING DATE" and collectively, the "CLOSING DATES") shall be 10:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) below, until April 30, 2018 and the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the "Additional Closing Deadline"Company and the applicable Buyer). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), each Buyer shall have the rightmay purchase, at such Buyer's sole option, Additional Notes by delivering written notice to require the Company (an "ADDITIONAL CLOSING NOTICE") at any time prior to issue and sell March 30, 2007. An Additional Closing Notice shall be delivered at least five Business Days prior to the applicable Additional Closing Date set forth in such Buyer, and such Buyer Additional Closing Notice. An Additional Closing Notice shall have set forth (i) the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related to be purchased by such Buyer at the applicable Additional Warrants as set forth opposite Closing, which principal amount, when added to the principal amount of any Additional Notes previously purchased by such Buyer's name in columns (3)(b) and 4(b), respectively, on shall not exceed the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes as is set forth opposite such Buyer's name in column (3)(b4) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Buyers, (ii) the date that aggregate Additional Purchase Price for the Company will be required to sell such Additional Notes to be purchased and related (iii) the proposed Additional Warrants Closing Date. The Company shall promptly deliver a copy of each Additional Closing Notice to each Buyer that did not issue such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than allow such Buyer to participate in such Additional Closing, provided such Buyer gives written notice of its election to participate two (2) Business Days prior to the Additional Closing DeadlineDate. No Buyer shall be entitled to cause the Company to consummate more As used herein, "BUSINESS DAY" means any day other than one (1) Buyer Additional Closing for such Buyer. Upon receipt Saturday, Sunday or other day on which commercial banks in The City of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (are authorized or such other date and time as is mutually agreed required by law to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000remain closed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Inksure Technologies Inc.)
Additional Closing Date. Subject to the satisfaction (or waiver) The date and time of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 Additional Closing (the "Additional Closing Deadline")Date" and, each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to by the Company and each Buyer) after notification of satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 6(b) and 7(b) below as provided therein, provided that, unless waived by such Buyer at any time in its sole discretion, no Buyer shall be obligated to close earlier than the tenth (10th) Trading Day after the date on which both (1) the Stockholder Approval (as defined below) has been obtained and (2) one or more Registration Statements (as defined in the Registration Rights Agreement) covering all of the Registrable Securities (as defined in the Registration Rights Agreement) pursuant the Registration Rights Agreement has been declared effective by the SEC. The Company shall deliver a written notice (the "Company Additional Closing Notice"), providing whether the Company has satisfied the conditions to an Additional Closing set forth in Section 7(b). If the Company has not satisfied one or more conditions to the Additional Closing set forth in Section 7(b), the Company shall not be entitled to require the Buyers to purchase Additional Notes at such Additional Closing and no Buyer shall be required to purchase Additional Notes unless the Company)conditions to the Additional Closing set forth in Section 7(b) have been satisfied (or waived) prior to December 1, 2015, but each Buyer may elect, in such Buyer's sole and absolute discretion, by written notice to the Company (a "Buyer Additional Closing Notice") to waive any such condition or conditions, and may elect to purchase the Additional Notes as set forth opposite such Buyer's name in column (3)(b) of the Schedule of Buyers. The location of such the Additional Closing shall be at the offices of Sxxxxxx Rxxx Xxxxxxx Xxxx & Zxxxx Xxxxx LLP, 900 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. As used herein "Trading Day" means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded; provided that "Trading Day" shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00 p.m., New York Time).
Appears in 1 contract
Additional Closing Date. Subject The Company is required to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer the “Additional Closing Notice"”) certifying that the Shareholder Approval (as defined below) is effective. The Additional Closing Notice must be delivered to each Buyer by the earlier to occur of (the “Additional Closing Notice Deadline”) (unless the Additional Closing Notice Deadline is waived by the Buyers) (x) five (5) Business Days after the Securities and Exchange Commission (the “SEC”) indicates it has no comments or no further review to the Company setting forth information or proxy statement (the “SEC Statement”) filed in connection with the Shareholder Approval (as defined below) (the “SEC Indication of Completion of Review”), and (y) (i) in the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from event the CompanySEC does not review the SEC Statements, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers April 5, 2006 and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (eachotherwise July 20, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline2006. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable the closing (the “Additional Closing (each, an "Additional Closing Date"Closing”, and together with all the Initial Closing, the “Closing”) of the purchase of the Preferred Shares (the “Additional Closing Dates Date”, and together with the Initial Closing Date, each a "the “Closing Date"”) shall be 10:00 a.m., New York City timeTime, on the date specified in earlier of (the applicable Buyer “Additional Closing Notice Deadline”) (or such other date and time as is mutually agreed to by the Buyers Company and each Buyer) (x) the Company)later of (A) the fifth (5th) Business Day after the date that the Additional Closing Notice has been delivered to each Buyer and (B) in the event that there has been no previous mailing of the applicable SEC Statement or the applicable rules and regulations of the SEC requires an additional mailing of the applicable SEC Statement, a date indicated in the Additional Closing Notice which may be up to twenty-two calendar days after the SEC Indication of Completion of Review and (y) (I) in the event the SEC does not review the SEC Statements, April 15, 2006 and (II) otherwise July 31, 2006. The location of such Additional Closing shall be occur at the offices of Sxxxxxx Rxxx Xxxxxxx Xxxx & Zxxxx Xxxxx LLP, 900 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Additional Closing Notice shall be irrevocable and must be delivered to each Buyer. Notwithstanding anything in this Agreement to the contrary, the Company shall not be entitled to require the Buyers to purchase the Preferred Shares unless the requirements of Section 7(b) below are satisfied or waived by each Buyer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Devcon International Corp)
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase its Additional Note and Additional Warrant at the Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before the Additional 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 by providing the Company with prior written notice thereof:
(i) No more than $1 million in aggregate principal amount of the Initial Notes remains outstanding.
(ii) As of the Additional Closing Date and as of the date of the Additional Closing Certificate (as defined below), no Equity Conditions Failure (as defined in the Notes) shall exist.
(iii) Such Buyer shall have received a certificate (the “Additional Closing Certificate”), in form and substance reasonably satisfactory to such Buyer, executed by the Chief Executive Officer of the Company, no more than thirty (30) Trading Days and no less than twenty (20) Trading Days prior to the Additional Closing Date, (A) setting forth the date of the proposed Additional Closing and (B) certifying that the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date set forth in Sections 6(b7(b)(i),(ii), (iii) and 7(b(xiii) below-(xix) hereof.
(iv) The Company shall have duly executed and delivered to such Buyer: (A) the Additional Note (in such original principal amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers (Additional Closing)) and (B) a Additional Warrant (for such aggregate number of Additional Warrant Shares as is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers (Additional Closing)), until April 30in each case, 2018 (which are being purchased by such Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(v) Such Buyer shall have received the rightopinion of Holland & Knight LLP, at the Company’s counsel, dated as of the Additional Closing Date, in the form previously provided to the Company.
(vi) The Company shall have delivered to such Buyer's sole option, to require 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 Additional Closing Date.
(vii) The Company shall have delivered to issue such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and sell 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 Additional Closing Date.
(viii) 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 within ten (10) days of the Additional Closing Date.
(ix) The Company shall have 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 Additional 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 Additional Closing.
(x) Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Additional 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 to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the rightChief Executive Officer of the Company, dated as of the Additional Closing Date, to purchase the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.
(xi) The Company shall have delivered to such Buyer a letter from the Company up to an aggregate principal amount Transfer Agent certifying the number of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, shares of Common Stock outstanding on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") Date immediately prior to the Company setting forth Additional Closing.
(xii) 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 Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the SEC Documents, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(xiii) From the date hereof to the Additional Closing Date, (i) trading in the aggregate principal amount Common Stock shall not have been suspended by the SEC or the Principal Market (except for any suspension of Additional Notes and related Additional Warrants that such Buyer wishes trading of limited duration agreed to purchase from by the Company, which aggregate principal amount suspension shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on be terminated prior to the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Closing), and, (ii) the date that the Company will be required at any time prior to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date, trading in securities generally as reported by Bloomberg L.P. shall be entitled 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 cause purchase the Securities at the Additional Closing
(xiv) The Company to consummate more than one (1) Buyer Additional Closing shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) sale of the conditions set forth in Sections 6(bSecurities, including without limitation, those required by the Principal Market.
(xv) and 7(bNo 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.
(xvi) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on 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.
(xvii) The Company shall have obtained approval of the applicable Buyer Principal Market to list or designate for quotation (as the case may be) the Conversion Shares and the Warrant Shares.
(xviii) A Registration Statement shall be effective and available for the issuance and sale of the Additional Closing set forth in such Buyer Notes, Additional Closing Notice Conversion Shares, Additional Warrants and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers Warrant Shares hereunder and the Company shall within one have delivered to such Buyer the related Prospectus (1and Prospectus Supplement, if applicable) Business Day after any as required thereunder.
(xix) The Company shall have delivered to such delivery publicly disclose Buyer a copy of the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (eachIrrevocable Transfer Agent Instructions, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the form of Exhibit C attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Transfer Agent.
(xx) The Company shall have at least [ ] shares of Common Stock authorized and available to be issued upon conversion or exercise, as applicable of the Additional Notes and Additional Warrants, respectively.
(xxi) The Company shall have delivered to such Buyer Additional Closing Notice (or such other date and time documents, instruments or certificates relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase its Additional Note and Warrants at the Additional Closing is subject to the satisfaction satisfaction, at or before the Additional 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 by providing the Company with prior written notice thereof:
(or waiveri) The Company shall have obtained Shareholder Approval.
(ii) There is then no Equity Conditions Failure (as defined in the Notes).
(iii) The Company shall have duly executed and delivered to such Buyer: (A) the Additional Note (in such original principal amount as is set forth across from such Buyer’s name in column (3) of the conditions Schedule of Buyers (Additional Closing)), (B) Series A Warrants (for such aggregate number of Warrant Shares as is set forth across from such Buyer’s name in Sections 6(bcolumn (4) of the Schedule of Buyers (Additional 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 (Additional Closing)) and 7(b(D) belowSeries 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 (Additional Closing)), until April 30in each case, 2018 (which are being purchased by such Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(iv) Such Buyer shall have received the rightopinion of Cozen X’Xxxxxx, at the Company’s counsel, dated as of the Additional Closing Date, in the form previously provided to the Company.
(v) The Company shall have delivered to such Buyer's sole optionBuyer 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 Additional Closing Date.
(vi) The Company shall have delivered to require 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 issue so qualify, as of a date within ten (10) days of the Additional Closing Date.
(vii) 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 within ten (10) days of the Additional Closing Date.
(viii) The Company shall have delivered to such Buyer a certificate, in the form previously provided to the Company, executed by the Secretary of the Company and sell dated as of the Additional 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, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that Articles of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing.
(ix) Each and every representation and warranty of the Company will shall be required to sell such Additional Notes true and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which correct as of the date shall not be less than one (1) Trading Day after delivery when made and as of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be entitled to cause the Company to consummate more than one (1true and correct as of such date) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose have performed, satisfied and complied in all respects with the delivery covenants, agreements and conditions required to be performed, satisfied or complied with by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "the Company at or prior to the Additional Closing Date". Such Buyer shall have received a certificate, and together with all executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Dates and the Initial Closing Date, each to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.
(x) The Company shall have delivered to such Buyer a "letter from the Transfer Agent certifying the number of shares of Common Stock outstanding on the Additional Closing Date"Date immediately prior to the Additional Closing.
(xi) The Common Stock (I) shall be 10:00 a.m., New York City time, designated for quotation or listed on the date specified Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the applicable Buyer SEC Documents, as of the Additional Closing Notice 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.
(xii) 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.
(xiii) 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.
(xiv) 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.
(xv) The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion Shares and the Warrant Shares.
(xvi) The Company shall have delivered to such Buyer such other date and time documents, instruments or certificates relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000Buyer or its counsel may reasonably request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Converted Organics Inc.)
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of the Additional Closings (each applicable Additional Closing (each, an "Additional Closing Date", ," and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date" and collectively, the "Closing Dates") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (as defined below), subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(c) (or such other later date and time as is mutually agreed to by the Buyers Company and the Companyapplicable Buyer). The location Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), each Buyer may purchase (provided that such Buyer was a Buyer under this Agreement on the date hereof and such Buyer holds all of the Preferred Shares purchased hereunder at the time of such Additional Closing), at such Buyer's option, Additional Preferred Shares by delivering written notice to the Company (an "Additional Closing Notice") at any time during the period beginning after the date hereof and ending on March 20, 2008 (the "Additional Closing Expiration Date"), which Additional Closing Expiration Date may be extended at the option of the Company to a date not later than May 20, 2008. The Additional Closing Notice shall be delivered at least ten (10) Business Days prior to the applicable Additional Closing Date set forth in such Additional Closing Notice. An Additional Closing Notice shall set forth (i) the number of Additional Preferred Shares to be purchased by such Buyer at the offices Additional Closing, which number of Sxxxxxx Rxxx & Zxxxx LLPshares shall not exceed the number of Additional Preferred Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers, 900 Xxxxx Xxxxxx(ii) the aggregate Additional Purchase Price for the Additional Preferred Shares to be purchased and (iii) the proposed Additional Closing Date. As used herein, Xxx Xxxx"Business Day" means any day other than Saturday, Xxx Xxxx 00000Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
Appears in 1 contract
Additional Closing Date. Subject The obligation of each Buyer hereunder to purchase the Additional Common Shares and the related Additional Warrants at each of the applicable Additional Closings is subject to the satisfaction (satisfaction, at or waiver) before each of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline")Dates, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have undertaken to deliver, within three (3) Business Days following the applicable Additional Closing Date (A) certificates for the Additional Common Shares (in such denominations as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement and (B) the related Additional Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement.
(ii) Such Buyer shall have received the rightopinion of Cooley Godward LLP, at the Company's counsel, dated as of the applicabxx Xxxitional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer's sole optionBuyer and in substantially the form of Exhibit D attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date.
(iv) 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 Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Additional Closing Date, 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.
(v) The Company shall have delivered to require such Buyer a certificate, executed by the Secretary of the Company to issue and sell to such Buyer, and such Buyer shall have dated as of the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") Date, as to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the CompanyResolutions, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that Certificate of Incorporation and (iii) the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (eachBylaws, a "Buyer each as in effect at the applicable Additional Closing"), which date shall not be less than one in the form attached hereto as Exhibit E.
(1vi) Trading Day after delivery The representations and warranties of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall be true and correct in all material respects (i) be required to sell to such Buyerexcept for representations and warranties that are qualified by materiality, and such Buyer which shall be required to purchase from the Company, the aggregate principal amount true and correct in all respects) as of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date when made and as of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice Date as though made at that time (except for representations and (ii) within one (1) Business Day of receipt warranties that speak as of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers specific date) and the Company shall within one have performed, satisfied and complied in all material respects (1except for covenants, agreements and conditions that are qualified by materiality, which shall be complied with in all respects) Business Day after any such delivery publicly disclose with the delivery covenants, agreements and conditions required by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the applicable Additional Closing (eachDate. Such Buyer shall have received a certificate, an "executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date", to the foregoing effect and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall as to such other matters as may be 10:00 a.m., New York City time, on the date specified reasonably requested by such Buyer in the applicable form attached hereto as Exhibit F.
(vii) The Company shall have delivered to such Buyer Additional Closing Notice (or such other date and time documents relating to the transactions contemplated by this Agreement as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000Buyer or its counsel may reasonably request.
Appears in 1 contract
Additional Closing Date. Subject (i) The date and time of the Additional Closings (each, an “Additional Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 8:00 a.m., New York City Time, on the date specified in the applicable Additional Closing Notice (as defined below), subject to the satisfaction (or waiver) of the conditions to each Additional Closing set forth in Sections 6(b) and 7(b) below, until April 30, 2018 and the conditions contained in this Section 1(c) (or such later date as is mutually agreed to by the "Additional Closing Deadline"Company and the applicable Buyer). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), each Buyer shall have the rightmay purchase, at such Buyer's sole ’s option, Additional Notes by delivering written notice to the Company (an “Additional Closing Notice”) at any time (A) with respect to the First Additional Notes Amount, during the period beginning after the date hereof and ending on the one year anniversary of the Initial Closing Date (the “First Optional Additional Notes Notice Termination Date”) and (B) with respect to the Second Additional Notes Amount, during the period beginning after the date the Shareholder Approval (as defined in Section 4(s) below) has been obtained and ending one year thereafter (the “Second Optional Additional Notes Notice Termination Date”, and with the First Optional Additional Notes Notice Termination Date, each an "Optional Additional Notes Notice Termination Date”); provided, that each Buyer may only exercise such right once with respect to the First Additional Notes Amount and once with respect to the Second Additional Notes Amount. In addition to the foregoing, if (x) (A) with respect to the First Additional Notes Amount, at any time from and after the Initial Closing Date until the one year anniversary date of the Initial Closing Date or (B) with respect to the Second Additional Notes Amount, during the period beginning after the date the Shareholder Approval has been obtained and ending one year thereafter, the Closing Sale Price (as defined in the Notes) of the Common Stock equals or exceeds CDN$1.485 (subject to appropriate adjustments for stock splits, stock dividends, stock combinations or other similar transactions after the Initial Closing Date) for each of any twenty (20) consecutive Trading Days (as defined in the Notes) and (y) the Equity Conditions (as defined in the Notes) shall have been satisfied (or waived in writing by each Buyer), on each Trading Day during the period commencing on the date of delivery of the applicable Mandatory Funding Notice (as defined below), and ending on the applicable Additional Closing Date, the Company shall have the right to require each Buyer to purchase Additional Notes by delivering to each Buyer an Additional Closing Notice (as provided by the Company, a “Mandatory Funding Notice”) setting forth the principal amount of Additional Notes to be purchased by the Buyers, which principal amount, when added to the principal amount of any Additional Notes previously purchased by each Buyer shall not exceed (1) if on or prior to the First Optional Additional Notes Notice Termination Date, but prior to the date the Company obtains the Shareholder Approval, the First Additional Notes Amount, (2) if on or prior to issue the First Optional Additional Notes Notice Termination Date and sell the Second Additional Notes Notice Termination Date, but after the date the Company obtains the Shareholder Approval, the aggregate of the First Additional Notes Amount and the Second Additional Notes Amount, or (3) if after the First Optional Additional Notes Notice Termination Date and after the date the Company obtains the Shareholder Approval, but prior to the Second Optional Additional Notes Notice Termination Date, the Second Additional Notes Amount; provided, that if the Company elects to deliver a Mandatory Funding Notice to any Buyer, it must deliver a Mandatory Funding Notice requiring the purchase of a pro rata amount of Additional Notes to all Buyers. Any Mandatory Funding Notice delivered by the Company shall be irrevocable. Each Mandatory Funding Notice shall contain a proposed Additional Closing Date that shall be at least 10 Business Days but not more than 60 Business Days following the date of delivery of such Mandatory Funding Notice to the Buyers. An Additional Closing Notice shall be delivered at least five Business Days prior to the applicable Additional Closing Date set forth in such Additional Closing Notice. An Additional Closing Notice shall set forth (i) the principal amount of Additional Notes to be purchased by such Buyer at the applicable Additional Closing, which principal amount, when added to the principal amount of any Additional Notes previously purchased by such Buyer, shall not exceed the sum of the First Additional Notes Amount and the Second Additional Notes Amount, (ii) the aggregate Purchase Price for the Additional Notes to be purchased and (iii) the proposed Additional Closing Date. The Company shall promptly deliver a copy of each Additional Closing Notice to each Buyer that did not issue such Additional Closing Notice and allow such Buyer shall have to participate in such Additional Closing. In the rightevent the Company, to purchase from (x) as of the Company up to an First Optional Additional Notes Notice Termination Date, has not sold $2.0 million in aggregate principal amount of Additional Notes and related of the First Additional Warrants Notes Amount to the Buyers or (y) as set forth opposite such Buyer's name of the Second Optional Additional Notes Notice Termination Date, has not sold $0.5 million in columns (3)(b) and 4(b)aggregate principal amount of Additional Notes of the Second Additional Notes Amount to the Buyers, respectively, on the Schedule of Buyers. To exercise such right, each Buyer Company may deliver a notice (the “Undersubscription Notice”) to each Buyer that has elected to purchase the entire First Additional Notes Amount or Second Additional Notes Amount, as applicable, of such Buyer (the “Additional Basic Amount”) within 5 Business Days of such anniversary notifying them of the principal amount of Additional Notes that have not been sold, such notice containing an offer to such Buyers to purchase more Additional Notes by delivering a "Buyer Additional Closing Notice") notice to the Company setting forth within 10 Business Days (ia “Undersubscription Election Notice”) from their receipt of a Undersubscription Notice to purchase some or all of the remaining Additional Notes specified in the Undersubscription Notice (the terms, conditions and purchase price shall be the same as specified with respect to the sale of the other Additional Notes). The Undersubscription Election Notice shall specify the principal amount of Additional Notes such Buyer elects to purchase (not to exceed the amount specified in the Undersubscription Notice). If the total principal amount of Additional Notes specified in the Undersubscription Election Notices of all Buyers is more than the aggregate principal amount of Additional Notes and related Additional Warrants that such specified in the applicable Undersubscription Notice, each Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum who has subscribed for any Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required pursuant to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing an Undersubscription Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause purchase only that portion of the Company amount specified in Undersubscription Notice as the Additional Basic Amount of such Buyer bears to consummate more than one (1) Buyer the total Additional Closing Basic Amounts of all Buyers that have subscribed for such Buyer. Upon receipt of a Buyer Additional Closing Notes pursuant to an Undersubscription Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, rounding by the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, extent it deems reasonably necessary. The additional Closing Date for the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of to be purchased pursuant to Undersubscription Election Notices shall occur 30 Business Days after the applicable Buyer Optional Additional Closing set forth Notice Termination Date. As used herein, "Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in such Buyer Additional Closing Notice and (ii) within one (1) Business Day The City of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (are authorized or such other date and time as is mutually agreed required by law to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000remain closed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Art Advanced Research Technologies Inc)
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing ADDITIONAL CLOSING Date") shall be 10:00 a.m., New York City timeTime, on the date specified in the applicable Buyer Additional Debenture Notice (as defined below), subject to satisfaction (or waiver) of the conditions to each Additional Closing Notice set forth in Sections 2.2(b) and 2.3(b) and the conditions contained in this Section 2.1(c) (or such other later date and time as is mutually agreed to by the Buyers Company and the Companyapplicable Purchaser). Subject to the requirements of Sections 2.2(b) and 2.3(b) and the conditions contained in this Section 2.1(c) each Purchaser may purchase, at such Purchaser's option, Additional Debentures by delivering written notice to the Company (an "ADDITIONAL DEBENTURE NOTICE") at any time during the period beginning after the date hereof and ending on and including the date which is the eighteen month anniversary of the effectiveness of the Registration Statement relating to the Initial Debentures and Initial Warrants. The location of such Additional Debenture Notice shall be delivered at least ten Business Days prior to the Additional Closing Date set forth in the Additional Debenture Notice. The Additional Debenture Notice shall set forth (i) the principal amount of Additional Debentures and related Additional Warrants to be purchased by such Purchaser at the offices applicable Additional Closing Date, which principal amount, when added to the principal amount of Sxxxxxx Rxxx & Zxxxx LLPany Additional Debentures previously purchased by such Purchaser, 900 Xxxxx Xxxxxxshall not exceed such Purchaser's Additional Investment Amount, Xxx Xxxx(ii) the aggregate Purchase Price for the Additional Debentures and related Additional Warrants to be purchased and (iii) the Additional Closing Date. As used herein, Xxx Xxxx 00000"BUSINESS DAY" means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
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Additional Closing Date. Subject The obligation of each New Buyer hereunder to purchase the Additional Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction (satisfaction, at or waiver) before each Additional Closing Date, of each of the following conditions, provided that these conditions set forth are for each New Buyer's sole benefit and may be waived by such New Buyer at any time in Sections 6(bits sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to such New Buyer the Additional Notes (in such principal amounts as such New Buyer shall request) and 7(bthe Additional Warrants (in such amounts as such New Buyer shall request) below, until April 30, 2018 (which are being purchased by such New Buyer at the "Additional Closing Deadline"), each pursuant to this Agreement.
(ii) Such New Buyer shall have received the rightopinion of Rxxxxxx & Axxxxxx, at such Buyer's sole optionLPA, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company's outside counsel, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount dated as of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer Date, in substantially the form of Exhibit H attached hereto.
(iii) The Irrevocable Transfer Agent Instructions shall be entitled to cause remain in effect as of the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers Date and the Company shall cause its transfer agent to deliver a letter to such New Buyer to that effect.
(iv) The Company shall have delivered to such New Buyer a certified copy of the Certificate of Incorporation as certified by the Nevada Secretary of State within one ten (110) Business Day after any such delivery publicly disclose days of the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date".
(v) The Company shall have delivered to such New Buyer a certificate, in the form acceptable to such New Buyer, executed by the Secretary of the Company and together with all dated as of the Additional Closing Dates and 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 New Buyer, (II) the Certificate of Incorporation of the Company and (III) the Bylaws of the Company, each as in effect at the Additional 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 Additional 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 to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date". Such New Buyer shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such New Buyer in the form acceptable to such New Buyer.
(vii) The Company shall have delivered to such New Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding on the Additional Closing Date immediately prior to the Additional Closing.
(viii) The Common Stock (I) shall be 10:00 a.m., New York City time, designated for quotation or listed (as applicable) on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Additional Closing Date, 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 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.
(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 competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(xi) Since the date specified of execution of this Agreement, no 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 obtained approval of the Principal Market to list or designate for quotation (as the case may be) the applicable Additional Conversion Shares and Additional Warrant Shares.
(xiii) No Event of Default (as defined in the applicable Buyer Additional Closing Notice (or such other date Notes) shall have occurred and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000continuing.
Appears in 1 contract
Additional Closing Date. (i) Subject to timely delivery by the Company to the Buyers of a valid Company Additional Note Notice (as defined below) or by any Buyer to the Company of a Buyer’s Additional Note Notice (as defined below), the date and time of each Additional Closing (each, an “Additional Closing Date”) shall be 10:00 a.m., New York Time, on the date specified in the applicable Company Additional Note Notice or Buyer’s Additional Note Notice, as applicable, subject to satisfaction (or waiver) of the conditions to the Additional Closing set forth in Sections 6(b) and 7(b) below, until April 30, 2018 below and the conditions set forth in this Section 1(c) (or such other date or time as is mutually agreed to by the "Additional Closing Deadline"Company and the Buyers). Subject to the requirements of Sections 6(b) and 7(b) below and the conditions contained in this Section 1(c), the Company on one occasion may require each Buyer shall have the rightseverally, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the rightbut not jointly, to purchase from the Company up to an aggregate such principal amount of Additional Notes and related Additional Warrants as is set forth opposite such Buyer's ’s name in columns column (3)(b4) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, Buyers on the Additional Closing Date by delivering written notice (the “Company Additional Note Notice”) to each Buyer may deliver a notice (a "Buyer Additional on any date from and after the nine-month anniversary of the Initial Closing Notice") Date and prior to the twenty-two month anniversary of the Initial Closing Date (the “Additional Note Notice Period”; and the date of receipt of the Company setting Additional Note Notice, the “Additional Note Notice Date”). The Company Additional Note Notice shall be irrevocable and must be delivered to each Buyer. The Company Additional Note Notice shall set forth (i) each Buyer’s pro rata allocation (based on the principal amount of Additional Notes as is set forth opposite each such Buyer’s name in column (4) on the Schedule of Buyers in relation to $75,000,000) of the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, (which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b$75,000,000) on the Schedule of Buyers and which aggregate number of related Additional Warrants shall not exceed which the number Company is requiring all of the Buyers to purchase at the Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and Closing, (ii) the date that the Company will be required to sell aggregate Purchase Price for each such Buyer’s Additional Notes and related Additional Warrants to such Buyer and (each, a "Buyer iii) the Additional Closing")Closing Date, which date Additional Closing Date shall not be less than one on the sixth (16th) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing DeadlineNote Notice Date. No Buyer Notwithstanding anything in this Agreement to the contrary, the Company shall not be entitled to cause require the Company Buyers to consummate more than one (1) Buyer purchase the Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing NoticeNotes unless, subject in addition to the satisfaction (or waiver) requirements of the conditions set forth in Sections 6(b) and 7(b) below, the following Conditions to Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Note Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "Closing Date") shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (or such other date and time as is mutually agreed to by the Buyers and the Company). The location of such Additional Closing shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000are satisfied.
Appears in 1 contract
Additional Closing Date. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, until April 30, 2018 (the "Additional Closing Deadline"), each Buyer shall have the right, at such Buyer's sole option, to require the Company to issue and sell to such Buyer, and such Buyer shall have the right, to purchase from the Company up to an aggregate principal amount of Additional Notes and related Additional Warrants as set forth opposite such Buyer's name in columns (3)(b) and 4(b), respectively, on the Schedule of Buyers. To exercise such right, each Buyer may deliver a notice (a "Buyer Additional Closing Notice") to the Company setting forth (i) the aggregate principal amount of Additional Notes and related Additional Warrants that such Buyer wishes to purchase from the Company, which aggregate principal amount shall not exceed such Buyer's maximum aggregate principal amount of maximum Additional Notes set forth opposite such Buyer's name in column (3)(b) on the Schedule of Buyers and which aggregate number of Additional Warrants shall not exceed the number of Additional Warrants set forth opposite such Buyer's name in column (4)(b) on the Schedule of Buyers and (ii) the date that the Company will be required to sell such Additional Notes and related Additional Warrants to such Buyer (each, a "Buyer Additional Closing"), which date shall not be less than one (1) Trading Day after delivery of such Buyer Additional Closing Notice and not later than the Additional Closing Deadline. No Buyer shall be entitled to cause the Company to consummate more than one (1) Buyer Additional Closing for such Buyer. Upon receipt of a Buyer Additional Closing Notice, subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and 7(b) below, the Company shall (i) be required to sell to such Buyer, and such Buyer shall be required to purchase from the Company, the aggregate principal amount of Additional Notes and related Additional Warrants set forth in the Buyer Additional Closing Notice on the date of the applicable Buyer Additional Closing set forth in such Buyer Additional Closing Notice and (ii) within one (1) Business Day of receipt of a Buyer Additional Closing Notice from a Buyer, deliver written notice thereof via facsimile or electronic mail and overnight courier to all other Buyers and the Company shall within one (1) Business Day after any such delivery publicly disclose the delivery by a Buyer of a Buyer Additional Closing Notice on a Current Report on Form 8-K. The date and time of each applicable the Additional Closing (each, an "Additional Closing Date", and together with all Additional Closing Dates and the Initial Closing Date, each a "“Closing Date"”) shall be 10:00 a.m., New York City time, on the date specified in the applicable Buyer Additional Closing Notice (as defined below) (or such other date and time as is mutually agreed to by the Buyers applicable Buyer and the Company) (the “Additional Closing Date”), subject to satisfaction (or waiver) of the conditions to Additional Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(d) (or such later date as is mutually agreed to by the Company and the applicable Buyer). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(d), each Buyer may purchase, at such Buyer’s option, Additional Common Shares, Additional Series A Warrants and Additional Series B Warrants by delivering written notice to the Company (the “Additional Closing Notice”) at any time during the period beginning after the date hereof and ending on December 23, 2008. The location of Additional Closing Notice shall be delivered at least three (3) Business Days prior to the Additional Closing Date set forth in such Additional Closing Notice. The Additional Closing Notice shall set forth (i) the number of Additional Common Shares to be purchased by such Buyer at the Additional Closing, which number of shares shall not exceed the number of Additional Common Shares as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers, (ii) Additional Series A Warrants to acquire up to that number of Additional Series A Warrant Shares as is set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers, which number shall equal the maximum number of Additional Series A Warrant Shares multiplied by the quotient obtained by dividing (x) the number of Additional Common Shares actually purchased by such Buyer on the Additional Closing Date, by (y) the maximum number of Additional Common Shares such Buyer is entitled to purchase on the Additional Closing Date as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers and, (iii) Additional Series B Warrants to acquire up to that number of Additional Series B Warrant Shares as is set forth opposite such Buyer’s name in column (8) on the Schedule of Buyers, which number shall equal the maximum number of Additional Series B Warrant Shares multiplied by the quotient obtained by dividing (x) the number of Additional Common Shares actually purchased by such Buyer on the Additional Closing Date, by (y) the maximum number of Additional Common Shares such Buyer is entitled to purchase on the Additional Closing Date as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers, (iv) the aggregate Additional Purchase Price and (v) the proposed Additional Closing Date. For the avoidance of doubt, there shall be at the offices of Sxxxxxx Rxxx & Zxxxx LLP, 900 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.not more than one (1)
Appears in 1 contract
Samples: Securities Purchase Agreement (China Technology Development Group Corp)
