Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions: (a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date. (b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing. (c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened. (d) As of the date of the Memorandum, the Company has a capitalization of (i) 40,000,000 shares of Common Stock authorized, of which 3,751,467 shares are issued and outstanding, (ii) 2,000,000 shares of preferred stock, par value $.01 per share, authorized, of which no shares are issued and outstanding; (iii) options to purchase 613,371 shares of Common Stock are issued and outstanding; and (iv) warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's Warrants. (e) The Placement Agent shall have received certificates of the chief financial officer of the Company, dated as of each Closing Date, certifying on behalf of the Company, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above. (f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary of State of Delaware and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents. (g) On or prior to the date hereof and at each Closing, the chief executive officer, president and chief financial officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request. (h) At each Closing, the Company shall have (i) paid to the Placement Agent the Placement Agent's Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses set forth in Section 5(i) hereof, and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional to the Units sold at such Closing. (i) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("Company Counsel"), dated as of each Closing Date, in substantially the form attached hereto as Exhibit A. (j) All actions taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby. (k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.
Appears in 2 contracts
Samples: Placement Agency Agreement (Home Director Inc), Placement Agency Agreement (Home Director Inc)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened.
(d) As of the date of the Memorandum, the Company has a capitalization of (i) 40,000,000 shares of Common Stock authorized, of which 3,751,467 7,222,146 shares are issued and outstanding, (ii) 2,000,000 shares of preferred stock, par value $.01 per share, authorized, of which no shares are issued and outstanding; (iii) options to purchase 613,371 2,200,340 shares of Common Stock are issued and outstanding; and (iv) warrants to purchase 773,592 8,202,372 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's Warrants.
(e) The Placement Agent shall have received certificates of the chief financial officer of the Company, dated as of each Closing Date, certifying on behalf of the Company, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary of State of Delaware and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at At each Closing, the chief executive officer, president officer and chief financial officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent the Placement Agent's Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses set forth in Section 5(i) hereof, and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional to the Units sold at such Closing.
(i) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("Company Counsel"), dated as of each Closing Date, in substantially the form attached hereto as Exhibit A.
(j) All actions taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.
Appears in 2 contracts
Samples: Placement Agency Agreement (Home Director Inc), Placement Agency Agreement (Home Director Inc)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's ’s knowledge, are contemplated or threatened.
(d) As of the date of the Memorandum, the Company has a will have an authorized and outstanding capitalization of (i) 40,000,000 shares of Common Stock authorized, of which 3,751,467 shares are issued and outstanding, (ii) 2,000,000 shares of preferred stock, par value $.01 per share, authorized, of which no shares are issued and outstanding; (iii) options as described in the Memorandum. Prior to purchase 613,371 shares of Common Stock are issued and outstanding; and (iv) warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's ’s Warrants.
(e) The Placement Agent shall have received certificates of the chief financial officer of the Company, dated as of each Closing Date, certifying on behalf of the Company, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary of State of Delaware and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's ’s Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, the chief executive officer, president officer and chief financial officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid pay to the Placement Agent the Placement Agent's ’s Fee in respect of all Units sold at such Closing, (ii) paid pay all fees, costs and expenses set forth in Section 5(i) hereof, and (iii) executed execute and delivered deliver to the Placement Agent the Agent's ’s Warrants in an amount proportional to the Units sold at such Closing.
(i) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company Xxxxxx Xxxxxx, LLP ("“Company Counsel"”), subject to usual and customary limitations, assumptions and caveats (including without limitation, exclusion of any opinion regarding the securities or “blue sky” laws of any of the several states, a public policy exclusion as to enforceability, and reliance as to factual matters on certifications of the Company’s executive officers and as to legal matters with respect to opinion (xi) set forth in Exhibit A, in part on the certifications of the Company’s general counsel) dated as of each Closing Date, in substantially the form attached hereto as Exhibit A.
(j) All actions taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's ’s Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent at each Closing hereunder are subject to the fulfillment, at or before each such Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened.
(d) As of the date of the MemorandumFirst Closing, the Company has a will have an authorized capitalization of (i) 40,000,000 not more than 50,000,000 shares of Common Stock authorized, of which 3,751,467 shares are issued and outstanding, (ii) 2,000,000 5,000,000 shares of preferred stock, no par value $.01 per share, authorizedvalue, of which no shares are issued and outstanding; (iii) options to purchase 613,371 not more than 7,028,500 shares of Common Stock are stock shall be issued and outstanding; and (iv) warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to sharesoutstanding or issuable under any convertible or exchangeable securities, options, stock subscription agreements warrants or warrants to purchase shares of the Company similar rights outstanding or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue reserved for issuance (excluding (i) compensatory option grants up to employees and consultants 475,000 shares issuable upon conversion of the Convertible Note (as defined in the ordinary course of business pursuant to option plans presently in effectMemorandum), (ii) up to 300,000 shares of its Common Stock issuable upon exercise of outstanding options or warrants or conversion of outstanding convertible securities the Notes (as defined in the Memorandum) and (iii) up to 150,000 shares issuable upon exercise of warrants issued to Xxxxxx Xxxxxx and Xxxxxxx Xxxxx Investors on the date hereof). No shares of preferred stock shall be issued and outstanding or issuable under securities included in the Units sold in the Offering and the Agent's Warrantsor rights.
(e) The Placement Agent shall have received certificates of the chief financial officer Chief Executive Officer and Chief Financial Officer of the Company, dated as of each Closing Date, certifying on behalf of the Companycertifying, in such detail as the Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent a certificate regarding incumbency of officers and the following (i) a currently dated good standing certificate from the Secretary secretary of State state of Delaware and each its jurisdiction in which the Company is qualified to do business as a foreign corporation, of incorporation and (ii) certified copies of the Company's bylaws and resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, the chief executive officer, president independent auditors for the Company shall have provided a letter confirming such matters as the Placement Agent may reasonably request; and chief financial officer (ii) the Chief Executive Officer and the Chief Financial Officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent Agent, the Placement Agent's Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses the Expense Allowance as set forth in Section 5(i3(d) hereof, hereof and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional equal to twenty percent (20%) of the Shares contained in the Units sold at such Closingsold.
(i) On or prior to the First Closing, each of the Company's officers, directors and shareholders owning, beneficially or of record, five percent (5%) or more of the Common Stock outstanding immediately prior to the First Closing shall have agreed in writing not to sell, transfer or otherwise dispose of more than fifteen percent (15%) of the Company's securities beneficially owned by them or issuable to them pursuant to the exercise of options, warrants or conversion of other securities without the Placement Agent's prior written consent, which consent shall not be unreasonably withheld, until the second anniversary of the First Closing, except that such persons may make transfers to a parent, spouse, sibling or descendent, or to a trust for the benefit of any of the foregoing persons; provided, however, that such transfers shall be subject to this Section 6(i) and that the Placement Agent may require that any such permitted transfer be made subject to a voting agreement pursuant to which the transferring shareholder retains the right to vote all transferred shares until the second anniversary of the First Closing. In addition, if within two years of the First Closing, the Company registers any of its securities under the Act which registration is effective, the officers, directors and present shareholders and any permitted transferees will extend the terms of the "lock-up" set forth in this Section 6(i) for a period of twelve months from completion of the offering contemplated thereby or such longer or shorter period as the underwriter shall require; provided, however, that in the event that such registration is an underwritten registration and the underwriter shall agree, the Company may permit such officers, directors and present shareholders to sell shares in such offering subject to the rights of investors under the Registration Rights Agreement.
(j) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("Company Counsel")Company, dated as of each Closing Date, substantially in substantially the form attached of Exhibit A hereto as Exhibit A.and otherwise in form and substance satisfactory to counsel to the Placement Agent.
(jk) All actions proceedings taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(kl) The Placement Agent On or prior to the First Closing, the Principal Shareholders shall be satisfied with agree to vote their shares of Common Stock in favor of any directors nominated by the results investors in the Offering pursuant to Section 9 of its due diligence investigation the Subscription Agreement at any meeting of the Company's shareholders or pursuant to any written consent in which the election of such directors is submitted to a vote of the Company's shareholders (and to remove directors as necessary to create vacancies therefor). The obligations of the Principal Shareholders under this Section 6(l) shall terminate upon the registration of each such investor's shares pursuant to the Registration Rights Agreement; provided that an investor's shares shall be deemed to be so registered if such investor elects not to include shares in any registration statement in which such shares are entitled to be included pursuant to the Registration Rights Agreement. Additionally, on or prior to the First Closing, the Principal Shareholders shall agree to vote in favor of the Placement Agent's nominee to the Board of Directors.
Appears in 1 contract
Samples: Placement Agency Agreement (Unity First Acquisition Corp)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company contained in this Agreement which are qualified as to materiality shall be have been true and correct, and the representations and warranties of the Company which are not qualified to materiality shall have been true and correct when made on in all material respects, in each case, as of the date hereof and on of this Agreement and as of each Closing Date as though made on and as of each Closing Date, except to the extent any such representation or warranty expressly speaks of a particular date, in which case it shall be true and correct as of such date.
(b) The Company shall have performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents hereunder at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened.
(d) As of immediately prior to the date of the MemorandumFirst Closing, the Company has will have a capitalization of (i) 40,000,000 100,000,000 shares of Common Stock authorized, of which 3,751,467 45,077,386 shares are shall be issued and outstanding, (ii) 2,000,000 shares of preferred stock, par value $.01 per share, authorized, of which no shares are issued and outstanding; (iii) options to purchase 613,371 16,628,790 shares of Common Stock are shall be issued and outstanding; and (iviii) warrants to purchase 773,592 7,429,166 shares of Common Stock are shall be issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's Warrants.
(e) The Placement Agent shall have received certificates of the chief financial officer of the Company, dated as of each the applicable Closing Date, certifying on behalf of the Company, in such detail as Placement Agent may reasonably request, Company as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary of State of Delaware and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, the chief executive officer, president officer and chief financial officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent the Placement Agent's Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses set forth in Section 5(i) hereof, and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional to the Units sold at such Closing.
(i) There shall have been delivered to the Placement Agent a signed opinion of outside counsel to the Company ("Company Counsel")Company, dated as of each Closing Date, in substantially the form attached hereto as Exhibit A.
(j) All actions taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Wireless Frontier Internet Inc)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened.
(d) As of the date of First Closing, after giving effect to the MemorandumReverse Stock Split, the Company has a will have an authorized capitalization of at least (i) 40,000,000 200,000,000 shares of Common Stock authorized, of which 3,751,467 1,123,372 shares are shall be issued and outstanding, (ii) 2,000,000 35,000,000 shares of preferred stockSeries A Convertible Preferred Stock, par value $.01 .001 per share, authorized, of which no 3,333,333 shares are will be issued and outstanding; (iii) options to purchase 613,371 100,000,000 shares of Common Stock Series B Convertible Preferred Stock, par value $.001 per share, authorized, of which 4,495,925 shares shall be issued and outstanding; (iv) 12,000,000 shares of Series C Convertible Preferred Stock, of which 1,000,000 shares are issued and outstanding; and (ivv) 5,062,356 options and warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will shall be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's Warrantsgranted.
(e) The Placement Agent shall have received certificates of the chief financial officer CEO of the Company, dated as of each Closing Date, certifying on behalf of the Company, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary of State of Delaware and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, the chief executive officer, president and chief financial officer CEO of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent the Placement Agent's Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses set forth in Section 5(i5(j) hereof, and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional to the Units sold at such Closing.
(i) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("Company CounselCOMPANY COUNSEL"), dated as of each Closing Date, in substantially the form attached hereto as Exhibit A.
(j) All actions proceedings taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened.
(d) As of the date of the MemorandumFirst Closing, the Company has a will have an authorized capitalization of (i) 40,000,000 not more than 16,500,000 shares of Common common stock and 10,000,000 shares of Preferred Stock authorized, of which 3,751,467 not more than 7,131,500 shares are shall be issued and outstanding, (ii) 2,000,000 shares of preferred stock, par value $.01 per share, authorized, of which no shares are issued and outstanding; (iii) options to purchase 613,371 shares of Common Stock are issued and outstanding; and (iv) warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to shares, outstanding or issuable under any options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of similar rights outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's Warrantsor reserved for issuance.
(e) The Placement Agent shall have received certificates of the chief financial officer Chief Executive Officer of the Company, dated as of each Closing Date, certifying on behalf of the Companycertifying, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary secretary of State state of Delaware its jurisdiction of incorporation and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at At each Closing, (i) the chief executive officer, president independent auditors for the Company shall have provided a letter confirming such matters as the Placement Agent may reasonably request; and chief financial officer (ii) the Chief Executive Officer and the Chief Financial Officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf the net worth of the Company and confirming that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid delivered to the Placement Agent Agent, the Placement Agent's Fee and the Expense Allowance as set forth in respect of all Units sold at such ClosingSection 3(c) hereof, (ii) paid all fees, costs reimbursed the Placement Agent for the fees and expenses set forth in Section 5(i) hereof, disbursements of the Placement Agent's counsel and Blue Sky counsel and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional to the Units sold at such Closingsold.
(i) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("Company Counsel"), dated as of each Closing Date, in substantially the form attached hereto as Exhibit A.
(j) All actions taken at On or prior to the First Closing, each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.'s officers, directors and present stockholders shall have agreed in writing not to sell, transfer or otherwise dispose of any of the Company's securities beneficially owned by them or issuable to them pursuant to the exercise of options, warrants or conversion of other securities without the Placement Agent's written consent, which consent shall not be unreasonably
Appears in 1 contract
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's ’s knowledge, are contemplated or threatened.
(d) As of the date of the MemorandumFirst Closing, the Company has a will have an authorized capitalization of (i) 40,000,000 shares of Common Stock authorizedStock, of which 3,751,467 approximately 4,314,525 shares are issued and outstanding, (ii) 2,000,000 shares of preferred stock, par value $.01 per share, authorized, of which no shares are issued and outstanding; (iii) options to purchase 613,371 shares of Common Stock are issued and outstanding; and (iv) warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or plus any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock issued upon exercise of outstanding options or warrants or conversion warrants) shall be issued and outstanding and 5,000,000 shares of outstanding convertible securities Preferred Stock, of which 3,240,000 shares will be designated as Series A Convertible Preferred Stock and (iii) securities included in the Units sold in the Offering up to 2,700,000 shares of Series A Convertible Preferred Stock will be issued and the Agent's Warrantsoutstanding.
(e) The Placement Agent shall have received certificates of the chief financial officer Chief Executive Officer and Chief Financial Officer of the Company, dated as of each Closing Date, certifying on behalf of the Companycertifying, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary secretary of State state of Delaware its jurisdiction of incorporation and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's ’s Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, the chief executive officer, president and chief financial officer Chief Executive Officer of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company (i) that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, (ii) the absence of material undisclosed liabilities and (iii) such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent the Placement Agent's ’s Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses the Expense Allowance as set forth in Section 5(i3(d) hereof, hereof and (iiiii) executed and delivered to the Placement Agent the Agent's ’s Warrants in an amount proportional to the Units sold at sold.
(i) On or prior to the First Closing, the Company, the Principal Stockholders and those management stockholders listed on Schedule A attached hereto (the “Stockholders”) shall have entered into a Stockholders’ Agreement substantially in the form of Annex B to the Memorandum (the “Stockholders’ Agreement”), pursuant to which the Principal Stockholders and the Stockholders shall agree not to sell, transfer or otherwise dispose of any of the Company’s securities beneficially owned by them or issuable to them pursuant to the exercise of options, warrants or conversion of other securities without the Placement Agent’s prior written consent, until the later of 180 days following the Final Closing or 180 days following the date that the Company becomes a fully reporting company under the Securities Exchange Act of 1934, as amended, except that such persons may make transfers to (i) a parent, spouse, sibling or descendent, or to a trust for the benefit of any of the foregoing persons and (ii) in accordance with the provisions set forth in the Stockholders Agreement, as of the date of the First Closing, among the Company, the Placement Agent, the Principal Stockholders and the Stockholders, the investors in the Offering; provided, however, that such transfers shall be subject to this Section 6(i) and that the Placement Agent may require that any such permitted transfer be made subject to a voting agreement pursuant to which the transferring stockholder retains the right to vote all transferred shares for up to two (2) years from the First Closing.
(ij) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("“Company Counsel"”), dated as of each Closing Date, in substantially form and substance reasonably satisfactory to counsel to the form attached hereto as Exhibit A.Placement Agent.
(jk) All actions proceedings taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's ’s Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(kl) The Placement Agent shall be satisfied with If applicable, the results of its due diligence investigation of the CompanySection 1(e) Requirements have been met.
Appears in 1 contract
Samples: Placement Agency Agreement (Prospect Medical Holdings Inc)
Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the fulfillment, at or before each Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and correct when made on the date hereof and on and as of each Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements, covenants and conditions required to be performed and complied with by it under the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Units shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company's knowledge, are contemplated or threatened.
(d) As of the date of First Closing, after giving effect to the MemorandumReverse Stock Split, the Company has a will have an authorized capitalization of at least (i) 40,000,000 150,000,000 shares of Common Stock authorized, of which 3,751,467 1,123,372 shares are shall be issued and outstanding, (ii) 2,000,000 35,000,000 shares of preferred stockSeries A Convertible Preferred Stock, par value $.01 .001 per share, authorized, of which no 3,333,333 shares are will be issued and outstanding; (iii) options to purchase 613,371 100,000,000 shares of Common Stock Series B Convertible Preferred Stock, par value $.001 per share, authorized, of which 4,495,925 shares shall be issued and outstanding; (iv) 12,000,000 shares of Series C Convertible Preferred Stock, of which 1,000,000 shares are issued and outstanding; and (ivv) 5,062,356 options and warrants to purchase 773,592 shares of Common Stock are issued and outstanding. Between the date of the Memorandum and the Final Closing, no additional securities will shall be issued by the Company, including but not limited to shares, options, stock subscription agreements or warrants to purchase shares of the Company or any other obligation to issue shares or other securities of the Company, without the prior written consent of the Placement Agent. Notwithstanding the preceding sentence, the Company may issue (i) compensatory option grants to employees and consultants in the ordinary course of business pursuant to option plans presently in effect, (ii) shares of its Common Stock upon exercise of outstanding options or warrants or conversion of outstanding convertible securities and (iii) securities included in the Units sold in the Offering and the Agent's Warrantsgranted.
(e) The Placement Agent shall have received certificates of the chief financial officer CEO of the Company, dated as of each Closing Date, certifying on behalf of the Company, in such detail as Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement Agent (i) a currently dated good standing certificate from the Secretary of State of Delaware and each jurisdiction in which the Company is qualified to do business as a foreign corporation, and (ii) certified resolutions of the Company's Board of Directors approving this Agreement and the other Transaction Documents, and the transactions and agreements contemplated by this Agreement and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, the chief executive officer, president and chief financial officer CEO of the Company shall have provided a certificate to the Placement Agent confirming on behalf of the Company that there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) or prospects of the Company from the date of the latest financial statements included in the Memorandum, the absence of material undisclosed liabilities and such other matters relating to the financial condition and prospects of the Company that the Placement Agent may reasonably request.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent the Placement Agent's Fee in respect of all Units sold at such Closing, (ii) paid all fees, costs and expenses set forth in Section 5(i5(j) hereof, and (iii) executed and delivered to the Placement Agent the Agent's Warrants in an amount proportional to the Units sold at such Closing.
(i) There shall have been delivered to the Placement Agent a signed opinion of counsel to the Company ("Company CounselCOMPANY COUNSEL"), dated as of each Closing Date, in substantially the form attached hereto as Exhibit A.
(j) All actions proceedings taken at or prior to each Closing and related documentation in connection with the authorization, issuance and sale of the Units and the Agent's Warrants will be reasonably satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(k) The Placement Agent shall be satisfied with the results of its due diligence investigation of the Company.
Appears in 1 contract
