Closing Items. 3.1 At the Closing, the Company shall deliver, or cause to be delivered, the following items: 3.1.1 the Amended Articles as file stamped by the Ohio Secretary of State; 3.1.2 the Amended and Restated Code of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C ("Restated Regulations"), certified as to their current form by the Secretary of the Company; 3.1.3 the Amended and Restated Registration Rights Agreement duly executed by the Company; 3.1.4 the Fourth Amended and Restated Shareholders Agreement among the Company, Xxxxx, Xxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trust, in the form attached hereto as EXHIBIT D duly executed by each of such parties (the "Shareholders Agreement"); 3.1.5 the opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Company, in the form attached hereto as EXHIBIT E 3.1.6 resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B Preferred Stock, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated hereby, certified as to their due adoption and continued validity by the Secretary of the Company; and 3.1.7 the completed United States Small Business Administration ("SBA") Parts A and B of Form 1031. 3.1.8 a certificate in each Investor's name representing the portion of the 2,979 shares of Series B Preferred Stock that such Investor is purchasing; and 3.1.9 a certificate, in form reasonably acceptable to the Investors and dated as of the Closing Date, from the Company, duly executed by the President of the Company and by Xxxxx, individually, as follows: (i) except for changes expressly contemplated by the terms of this Agreement or approved by the Investors, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Closing Date. 3.2 At the Closing, the Investors shall deliver, or cause to be delivered: 3.2.1 immediately available funds equal to the aggregate purchase price of $3,000,121; and 3.2.2 the Amended and Restated Registration Rights Agreement, duly executed by the Investors; and 3.2.3 a certificate, in form reasonably acceptable to the Company and dated as of the Closing Date, from each Investor, duly executed by its General Partner or Manager as appropriate, as follows: (i) except for changes expressly contemplated by the terms of this Agreement or approved by the Company, the representations and warranties of the Investor contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior to the Closing Date.
Appears in 2 contracts
Samples: Series B Convertible Preferred Stock Purchase Agreement (Dpec Inc), Series B Convertible Preferred Stock Purchase Agreement (Mindleaders Com Inc)
Closing Items. 3.1 At the First Closing, the Company shall deliver, or cause to be delivered, the following items:
3.1.1 the Amended Articles as file stamped by the Ohio Secretary of State;
3.1.2 the Amended and Restated Code of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C ("Restated Regulations"), certified as to their current form adoption by the Secretary of the Company;
3.1.3 the Amended Employment Agreement between the Company and Restated Xxxxx in the form attached hereto as EXHIBIT D, duly executed by the Company and Xxxxx;
3.1.4 the Registration Rights Agreement duly executed by the Company;
3.1.4 3.1.5 the Fourth Third Amended and Restated Shareholders Agreement among between the Company, Xxxxx, Xxxxx and Xxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trust, in the form attached hereto as EXHIBIT D E duly executed by each of such parties the Company, Xxxxx and Papalios (the "Shareholders Agreement");
3.1.5 3.1.6 the opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Company, in the form attached hereto as EXHIBIT EF;
3.1.6 3.1.7 resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B Senior Preferred Stock, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated hereby, certified as to their due adoption and continued validity by the Secretary of the Company; and
3.1.7 3.1.8 the completed United States Small Business Administration ("SBA") Form 480, Form 652 and Parts A and B of Form 1031.
3.1.8 3.2 At the First Closing, the Investor shall deliver, or cause to be delivered, the Registration Rights Agreement, duly executed by the Investor.
3.3 On the Funding Date, the Company shall deliver, or cause to be delivered, the following items:
3.3.1 a certificate in each the Investor's name representing the portion of the 2,979 5,123 shares of Series B Senior Preferred Stock that such Investor is purchasing; and
3.1.9 3.3.2 a certificate, in form reasonably acceptable to the Investors Investor and dated as of the Closing Funding Date, from the Company, duly executed by the President of the Company and by Xxxxx, individually, as follows:
follows (but, in the case of Xxxxx, each of the following shall be subject to her reasonable knowledge): (i) except for changes expressly contemplated by the terms of this Agreement or approved by the InvestorsInvestor, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Funding Date as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Closing Funding Date.
3.2 At 3.4 On the ClosingFunding Date, the Investors Investor shall deliver, or cause to be delivered, the following items:
3.2.1 3.4.1 immediately available funds equal to the aggregate purchase price of $3,000,1212,000,000; and
3.2.2 the Amended and Restated Registration Rights Agreement, duly executed by the Investors; and
3.2.3 3.4.2 a certificate, in form reasonably acceptable to the Company and dated as of the Closing Funding Date, from each the Investor, duly executed by its the General Partner or Manager as appropriateof the Investor, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Company, the representations and warranties of the Investor contained in this Agreement are true and complete in all material respects on and as of the Closing Funding Date as if made on and as of that date; and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior to the Closing Funding Date.
3.5 At each Subsequent Closing, if any, the Company shall deliver, or cause to be delivered, the following items:
3.5.1 certificates representing the number of shares of Senior Preferred Stock that the Investor is purchasing as specified in the notice delivered pursuant to Section 1.3.1 hereof;
3.5.2 a certificate, in form reasonably acceptable to the Investor and dated as of the Subsequent Closing, from the Company, duly executed by the President of the Company and by Xxxxx, individually, as follows (but, in the case of Xxxxx, each of the following shall be subject to her reasonable knowledge): (i) except for changes expressly contemplated by the terms of this Agreement or approved by the Investor, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Subsequent Closing as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Subsequent Closing; and
3.5.3 a certificate, in form acceptable to the Investor, regarding the Company's satisfaction of at least 85% of each of its applicable projected sales and EBIT aggregate targets for, in the case of a Subsequent Closing occurring on or after August 1, 1999, the preceding trailing 12 month period or, in the case of a Subsequent Closing occurring prior to August 1, 1999, the period of time commencing on August 1, 1998, as set forth on SCHEDULE 1.3.2.
3.6 At each Subsequent Closing, if any, the Investor shall deliver, or cause to be delivered, the following items:
3.6.1 payment of the purchase price in immediately available funds for the shares of Senior Preferred Stock that the Investor is purchasing; and
3.6.2 a certificate, in form reasonably acceptable to the Company and dated as of the Subsequent Closing, from the Investor, duly executed by the General Partner of the Investor, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Company, the representations and warranties of the Investor contained in this Agreement are true and complete in all material respects on and as of the Subsequent Closing as if made on and as of that date; and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior to the Subsequent Closing.
Appears in 1 contract
Samples: Senior Convertible Preferred Stock Purchase Agreement (Dpec Inc)
Closing Items. 3.1 At the Closing, the Company shall deliver, or cause to be delivered, the following items:
3.1.1 : [a] the Certificate of Incorporation of Company, as amended, including the Certificate of Amendment (the "Amended Articles as file stamped by the Ohio Secretary of State;
3.1.2 the Amended and Restated Code of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C ("Restated RegulationsCertificate"), certified as to their current form by the Secretary of the Company;
3.1.3 the Amended and Restated Registration Rights Agreement duly executed by the Company;
3.1.4 the Fourth Amended and Restated Shareholders Agreement among the Company, Xxxxx, Xxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trust, in the form attached hereto as EXHIBIT D duly executed Exhibit C certified by each the Delaware Secretary of such parties (State; [b] the "Shareholders Agreement");
3.1.5 the opinion Bylaws of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Company, in the form attached hereto as EXHIBIT E
3.1.6 resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B Preferred Stock, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated herebyExhibit D ("Bylaws"), certified as to their due adoption and continued validity by the Secretary of the Company; and
3.1.7 the completed United States Small Business Administration ("SBA") Parts A and B of Form 1031.
3.1.8 a certificate in each Investor's name representing the portion [c] resolutions of the 2,979 Board of Directors of Company authorizing the execution, delivery and consummation of this Agreement, the Registration Rights Agreement, the Shareholders Agreement, the Voting Agreement and the Series B Purchase Agreement, the Warrants (each as defined below), and the issuance of the shares of Series C Preferred Stock, certified as to their due adoption and continued validity by the Secretary of Company; [d] resolutions of the shareholders of Company authorizing the Amended Certificate, certified as to their due adoption and continued validity by the Secretary of Company; [e] the Amended and Restated Registration Rights Agreement in the form attached hereto as Exhibit E ("Registration Rights Agreement") duly executed by Company and all other parties thereto, other than Investor; [f] the Amended and Restated Shareholders Agreement in the form attached hereto as Exhibit F ("Shareholders Agreement") duly executed by Company and all other parties thereto, other than Investor; [g] the Voting Agreement in the form attached hereto as Exhibit G (the "Voting Agreement") duly executed by Company and all other parties thereto, other than Investor; [h] an opinion of Wyatx, Xxrrant & Combx, xxunsel to Company, substantially in the form attached hereto as Exhibit H; [i] the Series B Convertible Preferred Stock that such Purchase Agreement duly executed by Company and Investor is purchasingin the form attached hereto as Exhibit I (the "Series B Purchase Agreement"); and
3.1.9 a certificateand [j] the Warrants, in the form reasonably acceptable to the Investors and dated attached hereto as of the Closing Date, from the CompanyExhibit J, duly executed by the President of the Company and by Xxxxx, individually, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Investors, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Closing DateCompany.
3.2 At the Closing, the Investors Investor shall execute and shall deliver, or cause to be delivered:
3.2.1 immediately available funds equal to , the aggregate purchase price of $3,000,121; and
3.2.2 following items: [a] the Amended and Restated Registration Rights Agreement executed by Investor; [b] the Shareholders Agreement executed by Investor; [c] the Voting Agreement executed by Investor; [d] the Series B Purchase Agreement, duly executed by and [e] the Investors; andWarrants.
3.2.3 a certificate, in form reasonably acceptable to 3.3 At the Company and dated as time of the Post Closing DateCapital Call, from each Investorand any purchase pursuant to Section 1.3, duly executed by its General Partner or Manager as appropriate, as follows:
(i) except for changes expressly contemplated by Company shall deliver a certificate of an officer of Company updating the terms representa tions and warranties of Company set forth in Section 5. of this Agreement or approved by and an updated Disclosure Letter; provided, however, that such updated representations and warranties, together with the Companyupdated Disclosure Letter, when considered as a whole, are not materially adverse from the representations and warranties given at the Closing and there is not a material adverse change in the financial performance of Company relative to the financial performance of Company as set forth in the Business Plan. Investor's obligation to purchase 2,500,000 shares of Series C Preferred Stock pursuant to the Post Closing Capital Call made in accordance with Section 1.2 shall otherwise be unconditional. All payments by Investor shall be made by wire transfer of immediately available funds to the account specified by Company. In the event that payment has not been made within fifteen (15) days of the Investor contained in this Agreement are true and complete in all material respects on and as date of the Post Closing Date Capital Call as if set forth in a written notice sent by Company to Investor by facsimile transmission and overnight delivery, interest on the amount due shall accrue and be payable to Company at the rate of 10% per annum. In addition, in the event such payment has not been made on within forty-five (45) days of the date of the Post Closing Capital Call, Company shall have the option for ninety (90) days after expiration of such forty-five (45) day period (the "Call") to purchase any or all of the shares of stock of Company owned by Investor at $5.00 per share, without interest (the "Call Purchase Price"). The closing (the "Call Closing") shall take place at a time and as of that date; place mutually agreed upon by Investor and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it Company on or prior before the 120th day after written notice of exercise of the Call is given by Company to Investor, or if Investor and Company shall not agree on the time and place, the Call Closing Dateshall take place at the principal office of Company in Louisville, Kentucky at 10:00 a.m. on the 120th day after written notice of exercise is given, unless such day is a Saturday, Sunday or holiday, in which case it shall occur on the next business day. Notwithstanding the foregoing, Company may unilaterally withdraw its exercise of the Call hereunder without obligation to Investor at any time within sixty (60) days after exercise of such Call by giving Investor written notice of such withdrawal.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock Purchase Agreement (High Speed Access Corp)
Closing Items. 3.1 At the Closing, the Company shall deliver, or cause to be delivered, the following items:
3.1.1 : [a] the Certificate of Incorporation of Company, as amended, including the Certificate of Amendment (the "Amended Articles as file stamped by the Ohio Secretary of State;
3.1.2 the Amended and Restated Code of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C ("Restated RegulationsCertificate"), certified as to their current form by the Secretary of the Company;
3.1.3 the Amended and Restated Registration Rights Agreement duly executed by the Company;
3.1.4 the Fourth Amended and Restated Shareholders Agreement among the Company, Xxxxx, Xxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trust, in the form attached hereto as EXHIBIT D duly executed Exhibit B, certified by each the Delaware Secretary of such parties (State; [b] the "Shareholders Agreement");
3.1.5 the opinion Bylaws of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Company, Company in the form attached hereto as EXHIBIT E
3.1.6 resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B Preferred Stock, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated herebyExhibit C ("Bylaws"), certified as to their due adoption and continued validity by the Secretary of the Company; and
3.1.7 [c] resolutions of the completed United States Small Business Administration Board of Directors of Company authorizing the execution, delivery and consummation of this Agreement, the Registration Rights Agreement, the Shareholders Agreement, the Voting Agreement and the Series C Purchase Agreement, the Warrants (each as defined below), and the issuance of the shares of Series B Preferred Stock, certified as to their due adoption and continued validity by the Secretary of Company; [d] resolutions of the shareholders of Company authorizing the Amended Certificate certified as to their due adoption and continued validity by the Secretary of Company; [e] the Amended and Restated Registration Rights Agreement in the form attached hereto as Exhibit D duly executed by Company and all other parties thereto, other than Investor (the "SBARegistration Rights Agreement") Parts A ); [f] the Amended and B Restated Shareholders Agreement in the form attached hereto as Exhibit E duly executed by Company and all other parties thereto, other than Investor (the "Shareholders Agreement"); [g] the Voting Agreement in the form attached hereto as Exhibit F duly executed by Company and all other parties thereto, other than Investor (the "Voting Agreement"); [h] an opinion of Form 1031.
3.1.8 a certificate Wyatx, Xxrrant & Combx, xxunsel to Company, substantially in each Investor's name the form attached hereto as Exhibit G; [i] the Series C Convertible Preferred Stock Purchase Agreement duly executed by Company and Investor in the form attached hereto as Exhibit H (the "Series C Purchase Agreement"); [j] stock certificates representing the portion of the 2,979 8,000,000 shares of Series B Preferred Stock that such purchased by Investor is purchasingpursuant to Section 1.2 above; and
3.1.9 a certificate, and [k] the Warrants in the form reasonably acceptable to attached hereto as Exhibit I (the Investors and dated as of the Closing Date, from the Company, "Warrants") duly executed by the President of the Company and by Xxxxx, individually, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Investors, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Closing DateCompany.
3.2 At the Closing, the Investors shall deliver, or cause to be delivered:
3.2.1 immediately available funds equal to in the aggregate amount of Twenty Million Dollars ($20,000,000) representing the purchase price for the shares of $3,000,121; and
3.2.2 the Amended and Restated Registration Rights Agreement, duly executed Series B Preferred Stock purchased by the Investors; and
3.2.3 a certificate, in form reasonably acceptable Investor pursuant to the Company and dated as of the Closing Date, from each Investor, duly executed by its General Partner or Manager as appropriate, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Company, the representations and warranties of the Investor contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior to the Closing DateSection 1.2 above.
Appears in 1 contract
Samples: Series B Convertible Preferred Stock Purchase Agreement (High Speed Access Corp)
Closing Items. 3.1 At the Closing, the Company shall deliver, or cause to be delivered, to River Cities the following items:
3.1.1 the Amended Articles as file stamped by the Ohio Secretary of State;
3.1.2 the Amended and Restated Code of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C ("Restated Regulations"), certified as to their current form by the Secretary of the Company;
3.1.3 the Second Amended and Restated Registration Rights Agreement duly executed by the Company;
3.1.4 the Fourth Fifth Amended and Restated Shareholders Agreement among the Company, Xxxxx, Xxxx a trust created by Xxxxx, Xxxxxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trusta trust created by Papalios, in the form attached hereto as EXHIBIT D duly executed by each of such parties (the "Shareholders Agreement");
3.1.5 the opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Company, in the form attached hereto as EXHIBIT E;
3.1.6 resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B C Preferred StockStock and the Warrant, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated hereby, certified as to their due adoption and continued validity by the Secretary of the Company; and;
3.1.7 the completed United States Small Business Administration ("SBA") Parts A and B of Form 1031.; and
3.1.8 the Warrant issued in River Cities' name in the form attached hereto as EXHIBIT F and a share certificate in each Investor's River Cities' name representing the portion of the 2,979 shares of Series B C Preferred Stock that such Investor is purchasing; and
3.1.9 a certificate, in form reasonably acceptable to the Investors and dated as of the Closing Date, from the Company, duly executed by the President of the Company and by Xxxxx, individually, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Investors, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Closing DateStock.
3.2 At the Closing, the Investors River Cities shall deliver, or cause to be delivered:
3.2.1 , to the Company $1,500,000 in immediately available funds equal funds.
3.3 At the Closing, the Investors shall deliver to the aggregate purchase price of $3,000,121; and
3.2.2 Company the Second Amended and Restated Registration Rights Agreement, duly executed by the Investors; and
3.2.3 a certificate, in form reasonably acceptable to the Company and dated as of the Closing Date, from each Investor, duly executed by its General Partner or Manager as appropriate, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Company, the representations and warranties of the Investor contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior to the Closing Date.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock Purchase Agreement (Mindleaders Com Inc)
Closing Items. 3.1 At the Closing, the Company and Founders shall deliver, or cause to be delivered, the following items:
3.1.1 : [a] a certificate representing the Amended shares of Preferred Stock that Investor is purchasing against payment of the purchase price therefor in immediately available funds; [b] the Articles as file stamped certified by the Ohio Delaware Secretary of State;
3.1.2 ; [c] the Amended and Restated Code Bylaws of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C Company ("Restated RegulationsBylaws"), certified as to their current form due adoption and continued validity by the Secretary of Company; [d] the Company;
3.1.3 Employment, Noncompetition and Nondisclosure Agreement between Company and Pitcxxx xx the Amended form attached hereto as Exhibit B duly executed by Company and Restated Pitcxxx; [e] the Noncompetition and Nondisclosure Agreement between Company and each of Gans, Xxxxxx X. Axxx, Xxwrxxxx Xxxxxxx, Xxhn Xxxxxx xxx Terrxxxx X. Xxxxxx xx the form attached hereto as Exhibit C duly executed by Company and Gans; [f] the Registration Rights Agreement duly executed by the Company;
3.1.4 the Fourth Amended and Restated Shareholders Agreement among the Company, Xxxxx, Xxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trust, in the form attached hereto as EXHIBIT Exhibit D ("Registration Rights Agreement") duly executed by each of such parties Company; [g] the Shareholders Agreement in the form attached hereto as Exhibit E (the "Shareholders Agreement");
3.1.5 ) duly executed by Company, Founder, and each of Gans, Xxxxxx X. Axxx, Xxwrxxxx Xxxxxxx, Xxhn Xxxxxx xxx Terrxxxx X. Xxxxxx; [h] the 1998 Stock Option Plan in the form attached hereto as Exhibit F (the "Stock Option Plan") duly executed by Company; [i] the opinion of VorysHourxxxx, XxxxxXxuger & Quinx, Xxxxxxx and Xxxxx LLP, counsel xxunsel to the Company, in the form attached hereto as EXHIBIT E
3.1.6 Exhibit G; [j] the $650,000 Promissory Note executed by Company in favor of Gans Multimedia Partnership in the form attached hereto as Exhibit H (the "Note"); [k] resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B Preferred Stock, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated hereby, certified as to their due adoption and continued validity by the Secretary of the Company; and
3.1.7 and [l] information necessary for the completed United States Small Business Administration ("SBA") Parts A and B preparation of a Portfolio Financing Report on SBA Form 1031.
3.1.8 a certificate in each Investor's name representing the portion of the 2,979 shares of Series B Preferred Stock that such Investor is purchasing; and
3.1.9 a certificate, in form reasonably acceptable 1031 with respect to the Investors and dated as of the Closing Date, from the Company, duly executed by the President of the Company and by Xxxxx, individually, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by the Investors, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Company and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior to the Closing Date.
3.2 At the Closing, the Investors Investor shall deliver, or cause to be delivered:
3.2.1 delivered the following items: [a] immediately available funds equal to in the aggregate purchase price amount of Five Hundred Thousand Dollars ($3,000,121500,000); and
3.2.2 [b] the Amended and Restated Registration Rights Agreement executed by Investor; [c] the Shareholders Agreement executed by Investor; and [d] resolutions of the Board of Managers of Investor authorizing the execution, delivery and consummation of this Agreement, duly executed by the Investors; and
3.2.3 a certificate, in form reasonably acceptable to the Company and dated as purchase of the Closing Dateshares of Preferred Stock, from each Investor, duly executed by its General Partner or Manager as appropriate, as follows:
(i) except for changes expressly and the other matters contemplated by the terms of this Agreement or approved by the Company, the representations and warranties of the Investor contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and (ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior to the Closing Datehereby.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (High Speed Access Corp)
Closing Items. 3.1 (a) At the Closing, the Company Seller shall deliver, or cause to be delivered, the following items:
3.1.1 the Amended Articles as file stamped by the Ohio Secretary of State;
3.1.2 the Amended and Restated Code of Regulations (as amended by agreed amendments) in the form attached hereto as EXHIBIT C ("Restated Regulations"), certified as to their current form by the Secretary of the Company;
3.1.3 the Amended and Restated Registration Rights Agreement duly executed by the Company;
3.1.4 the Fourth Amended and Restated Shareholders Agreement among the Company, Xxxxx, Xxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, as trustee and grantor of the Xxxxxxx Xxxxxxxx Trust, in the form attached hereto as EXHIBIT D duly executed by each of such parties (the "Shareholders Agreement");
3.1.5 the opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Company, in the form attached hereto as EXHIBIT E
3.1.6 resolutions of the Board of Directors and shareholders of the Company authorizing the execution, delivery and consummation of this Agreement, the filing of the Amended Articles, the issuance of the shares of Series B Preferred Stock, the adoption of the agreed amendments to the Restated Regulations, and the other matters contemplated hereby, certified as to their due adoption and continued validity by the Secretary of the Company; and
3.1.7 the completed United States Small Business Administration ("SBA") Parts A and B of Form 1031.
3.1.8 a certificate in each Investor's name representing the portion of the 2,979 shares of Series B Preferred Stock that such Investor is purchasing; and
3.1.9 a certificate, in form reasonably acceptable to the Investors and dated as of the Closing Date, from the Company, duly executed by the President of the Company and by Xxxxx, individually, as followsSeller where appropriate:
(i) except for changes expressly member resolutions of Seller and resolutions of the board of directors of Parent authorizing the transactions contemplated by the terms of this Agreement or approved by the Investors, the representations and warranties of the Company and Xxxxx contained in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and Agreement;
(ii) such assignments, bills of sale, certificates of title, lien releases, and sufficient instruments of conveyance and transfer as shall be effective in the Company reasonable opinion of Purchaser’s counsel to vest in Purchaser good and Xxxxx have complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by them on or prior valid title to the Closing DateAssets, free and clear of all liens, charges, security interests, options, claims and encumbrances, except those obligations being specifically assumed by Purchaser as set forth in Section 1.3 above;
(iii) the trademark assignment attached hereto as Exhibit A (the “Trademark Assignment”);
(iv) the patent assignment attached hereto as Exhibit B (the “Patent Assignment”);
(v) the subcontract pending novation and consent attached hereto as Exhibit C-1 (the “Subcontract Agreement”) and the supply and subcontract agreement attached hereto as Exhibit C-2 (the “Supply Agreement”);
(vi) the transition services agreement attached hereto as Exhibit D (the “Transition Services Agreement”);
(vii) the escrow agreement attached hereto as Exhibit E (the “Escrow Agreement”)
(viii) the assignment and assumption agreement attached hereto as Exhibit F) (the “Assignment and Assumption”);
(ix) a certification from Parent, the owner of Seller, that Parent is not a foreign person in accordance with the Treasury Regulations under Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”);
(x) executed consent documents for those agreements listed on Schedule 3.2(a)(x);
(xi) the opinion of Xxxxxxxx, Xxxxxx & Finger, PA, Delaware counsel to Parent, attached hereto as Exhibit G; and
(xii) those documents required to assign the Government Contracts to Purchaser as set forth below in this Article 3.
3.2 (b) At the Closing, the Investors Purchaser shall deliver, or cause to be delivered:
3.2.1 immediately available funds equal to , the aggregate purchase price of $3,000,121; and
3.2.2 the Amended and Restated Registration Rights Agreementfollowing items, duly executed by the Investors; and
3.2.3 a certificate, in form reasonably acceptable to the Company and dated as of the Closing Date, from each Investor, duly executed by Purchaser or its General Partner or Manager as applicable Affiliate where appropriate, as follows:
(i) except for changes expressly contemplated by the terms of this Agreement or approved by Purchase Price (less the Company, Escrow Amount) in the representations and warranties of the Investor contained manner provided in this Agreement are true and complete in all material respects on and as of the Closing Date as if made on and as of that date; and Section 2.1;
(ii) the Investor has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by it on or prior Escrow Amount to the Closing DateEscrow Agent, in the manner provided in Section 2.1;
(iii) the assignments, bills of sale, certificates of title referenced in Section 3.2(a)(ii) of this Agreement, if appropriate;
(iv) the Trademark Assignment;
(v) the Patent Assignment;
(vi) the Supply Agreement and the Subcontract Agreement;
(vii) the Transition Services Agreement;
(viii) the Escrow Agreement;
(ix) the Assignment and Assumption; and
(x) those documents required to assign the Government Contracts to Purchaser as set forth below in this Article 3.
Appears in 1 contract
