Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below: (i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market; (ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company; (iii) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if any; (iv) all Common Shares shall have been timely delivered pursuant to (i) any Exercise Notice delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date; (v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date; (vi) all previously-issued Common Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legend; (vii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction Document; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; and no actions, suits or proceedings shall be in progress, pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document; (viii) the Company shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale and resale of the Securities, including without limitation, the Required Approval, if necessary; (ix) a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit the lawful public resale by the Investor of all Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates; (x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewith; (xi) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investor, including without limitation all Commitment Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon exercise of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranche; (xii) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement; (xiii) the aggregate number of Common Shares issuable to Investor, aggregated with all other shares of Common Stock deemed beneficially owned by Investor and its Affiliates would not cause Investor to exceed the Investor Ownership Limit; (xiv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary of the Effective Date), Investor shall have previously received the Commitment Fee; (xv) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada and shall be in full force and effect; (xvi) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered; (xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing; (xviii) the Opinion, dated as of the Tranche Notice Date, shall be delivered to Investor; (xix) the Warrant shall have been delivered to Investor; and (xx) Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche Notice.
Appears in 1 contract
Samples: Securities Purchase Agreement (NYXIO TECHNOLOGIES Corp)
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to accept a Tranche Notice and to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a the Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Datesuch date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Datesuch date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) the representations and warranties of the Investor set forth in this Agreement shall be true and correct in all material respects as if made on such date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date, and the Investor shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such date;
(iv) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if anyCommitment Closing;
(ivv) all Common Warrant Shares shall have been timely delivered pursuant to (i) any Exercise Notice properly delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(vi) to the extent required under the terms of the Warrant and Section 5.1 of this Agreement, all previously-issued Common Warrant Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legendrestriction on resale;
(vii) the Company is not, and will not be as a result of the applicable Tranche, in default of any Material Agreement (it being hereby acknowledged and agreed that for purposes of this paragraph (vii), the trigger of any antidilution, price-reset or similar provisions in any outstanding warrants or other derivative securities of the Company as a result of the applicable Tranche shall not be deemed a default of any Material Agreement);
(viii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or by any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction DocumentAgreement; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; Agreement, and no actions, suits or proceedings shall be in progress, progress or pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document;
(it being hereby acknowledged and agreed that for purposes of this paragraph (viii) the Company ), no proceeding shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale and resale be deemed pending unless one of the Securities, including without limitation, parties hereto has received written notification thereof prior to the Required Approval, if necessaryapplicable Tranche Notice Date);
(ix) the Company is in compliance with all reporting requirements under the Exchange Act in order to maintain listing on its then current Trading Market;
(x) either (A) the Company has a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit covering the lawful public resale by the Investor of all Common Warrant Shares underlying the Warrant (including the portion then issued or issuable upon exercise of the Warrant, or (B) all of such Warrant vesting on Shares are Rule 144 Eligible (assuming cashless exercise of the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates;
(x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewithWarrant);
(xi) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance in such amount as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investor, including without limitation issue all Commitment Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon based on the then current anticipated exercise price(s) of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranchethe Warrant;
(xii) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;; and
(xiii) the aggregate number of Common Warrant Shares issuable to Investorupon exercise of the Warrant based on the then-current anticipated exercise price(s) of the Warrant, aggregated with all other shares of Common Stock deemed beneficially owned by the Investor and its Affiliates would not cause Investor to exceed result in the Investor Ownership Limit;
(xiv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary beneficially owning more than 9.99% of the Effective Date), Investor shall have previously received the Commitment Fee;
(xv) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada and shall be in full force and effect;
(xvi) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered;
(xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviii) the Opinion, dated as of Common Stock outstanding on the Tranche Notice Date, shall be delivered to Investor;
(xixas determined in accordance with Section 13(d) the Warrant shall have been delivered to Investor; and
(xx) Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche NoticeExchange Act and the rules and regulations promulgated thereunder.
Appears in 1 contract
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market, other than the bid price deficiency disclosed in recent 8-K reports filed by the Company;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if any;
(iv) all Common Shares shall have been timely delivered pursuant to (i) any Exercise Notice delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(vi) all previously-issued Common Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legend;
(vii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction Document; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; and no actions, suits or proceedings shall be in progress, pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document;
(viii) the Company shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale and resale of the Securities, including without limitation, the Required Approval, if necessary;
(ix) a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit the lawful public resale by the Investor of all Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its AffiliatesAffiliates and, if applicable, all Placement Agent Fee Shares then held by the Placement Agent;
(x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewith;
(xi) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investor, including without limitation all Commitment Placement Agent Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon exercise of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranche;
(xii) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;
(xiii) the aggregate number of Common Shares issuable to Investor, aggregated with all other shares of Common Stock deemed beneficially owned by Investor and its Affiliates would not cause Investor to exceed the Investor Ownership Limit;
(xiv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary of the Effective Date), Investor the Placement Agent shall have previously received the Commitment Placement Agent Fee;
(xv) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada Delaware and shall be in full force and effect;
(xvi) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered;
(xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviii) the Opinion, dated as of the Tranche Notice Date, shall be delivered to Investor;
(xix) the Warrant shall have been delivered to Investor; and
(xx) Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche Notice.
Appears in 1 contract
Samples: Securities Purchase Agreement (Marina Biotech, Inc.)
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to accept a Tranche Notice and to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice notice, other than the letter received from the NYSE Amex on September 12, 2011 and reported on the Company’s Form 10-Q filed with the SEC on September 14, 2011 notifying the Company of its failure to satisfy certain continued listing standards, specifically Section 1003(a)(iv) of the Company Guide (the “Below Compliance Letter”), of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if any;
(iv) all Common Shares shall have been timely delivered pursuant to (i) any Exercise Notice delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(vi) all previously-issued Common Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legend;
(vii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction Document; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; and no actions, suits or proceedings shall be in progress, pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document;
(viii) the Company shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale and resale of the Securities, including without limitation, the Required Approval, if necessary;
(ix) the Company has a current, valid and effective Registration Statement and the Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), use to permit the lawful public sale and resale by the Investor of all previously-issued and future issuable Common Shares underlying the Warrant (including the portion without limitation all Warrant Shares issuable upon exercise of the Warrant vesting on the applicable delivered in connection with such Tranche Notice Date) and underlying the any previous Tranches, all Additional Investment Shares issuable upon exercise of any Additional Investment Right Exercise Notice delivered in connection with respect to the applicable Tranche Notice Date andsuch Tranche, if applicable, all and any Commitment Fee Shares then held by the Investor or any of its Affiliates;
(x) to the extent required under the ActShares), the Company and will, within the time period as soon as practicable (but in any event as required by Rule 424 under the Act), file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewith;
(xix) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investor, including without limitation all Commitment Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon exercise of any Additional Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranche;
(xiixi) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;
(xiiixii) the aggregate number of Common Shares issuable to Investor, aggregated with all other shares of Common Stock deemed beneficially owned by Investor and its Affiliates would not cause Investor to exceed the Investor Ownership Limit;
(xivxiii) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary of the Effective Date), Investor shall have previously received the Commitment Fee;
(xvxiv) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada Colorado and shall be in full force and effect;
(xvixv) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered;
(xviixvi) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviiixvii) the Opinion, dated as of the Tranche Notice Date, shall be delivered to Investor;
(xixxviii) the Warrant shall have been delivered to Investor; and
(xxxix) if any of the Common Shares cease to be a “covered security” pursuant to Section 18 of the Act, Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche Notice.
Appears in 1 contract
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if any;
(iv) all Common Shares shall have been timely delivered pursuant to (i) any Exercise Notice delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(vi) all previously-issued Common Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legend;
(vii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction Document; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; and no actions, suits or proceedings shall be in progress, pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document;
(viii) the Company shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale and resale of the Securities, including without limitation, the Required Approval, if necessary;
(ix) a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit the lawful public sale and resale by the Investor of all previously issued and future issuable Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its AffiliatesAffiliates and, if applicable, all Investor Fee Shares then held by the Investor;
(x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewith;
(xi) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investor, including without limitation all Commitment Investor Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon exercise of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranche;
(xii) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;
(xiii) the aggregate number of Common Shares issuable to Investor, aggregated with all other shares of Common Stock deemed beneficially owned by Investor and its Affiliates would not cause Investor to exceed the Investor Ownership Limit;
(xiv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary of the Effective Date), the Investor shall have previously received the Commitment Investor Fee;
(xv) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada Delaware and shall be in full force and effect;
(xvi) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered;
(xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviii) the Opinion, dated as of the Tranche Notice Date, shall be delivered to Investor;
(xix) the Warrant shall have been delivered to Investor; and
(xx) if any of the Common Shares cease to be a “covered security” pursuant to Section 18 of the Act, Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche Notice.
Appears in 1 contract
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to accept a Tranche Notice and to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfactionsatisfaction (or where legally permissible, the waiver), on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:. Other than the conditions set forth in clause (iii) below, which are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion (if legally permissible), and the conditions set forth in clause (viii) below, which are for the Company’s and the Investor’s benefit and may be waived by both the Company and the Investor in their discretion (if legally permissible) by mutual written agreement, the remaining conditions set forth in this Section 2.3(c) are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion (if legally permissible).
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a the Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Datesuch date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Datesuch date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) the representations and warranties of the Investor set forth in this Agreement shall be true and correct in all material respects as if made on such date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date, and the Investor shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such date;
(iv) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if anyCommitment Closing;
(ivv) all Common Warrant Shares shall have been timely delivered pursuant to (i) any Exercise Notice properly delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(vi) to the extent required under the terms of the Warrant and Section 5.1 of this Agreement, all previously-issued Common Warrant Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legendrestriction on resale;
(vii) the Company is not, and will not be as a result of the applicable Tranche, in default of any Material Agreement (it being hereby acknowledged and agreed that for purposes of this paragraph (vii), the trigger of any antidilution, price-reset or similar provisions in any outstanding warrants or other derivative securities of the Company as a result of the applicable Tranche shall not be deemed a default of any Material Agreement);
(viii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or by any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction DocumentAgreement; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; Agreement, and no actions, suits or proceedings shall be in progress, progress or pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document;
(it being hereby acknowledged and agreed that for purposes of this paragraph (viii) the Company ), no proceeding shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale and resale be deemed pending unless one of the Securities, including without limitation, parties hereto has received written notification thereof prior to the Required Approval, if necessaryapplicable Tranche Notice Date);
(ix) the Company is in compliance with all reporting requirements under the Exchange Act in order to maintain listing on its then current Trading Market;
(x) either (A) the Company has a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit covering the lawful public resale by the Investor of all Common Warrant Shares underlying the Warrant (including the portion then issued or issuable upon exercise of the Warrant, or (B) all of such Warrant vesting on Shares are Rule 144 Eligible (assuming cashless exercise of the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates;
(x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewithWarrant);
(xi) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance in such amount as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investor, including without limitation issue all Commitment Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon based on the then current anticipated exercise price(s) of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranchethe Warrant;
(xii) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;; and
(xiii) the aggregate number of Common Warrant Shares issuable to Investorupon exercise of the Warrant based on the then-current anticipated exercise price(s) of the Warrant, aggregated with all other shares of Common Stock deemed beneficially owned by the Investor and its Affiliates would not cause Investor to exceed result in the Investor Ownership Limit;
(xiv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary beneficially owning more than 9.99% of the Effective Date), Investor shall have previously received the Commitment Fee;
(xv) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada and shall be in full force and effect;
(xvi) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered;
(xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviii) the Opinion, dated as of Common Stock outstanding on the Tranche Notice Date, shall be delivered to Investor;
(xixas determined in accordance with Section 13(d) the Warrant shall have been delivered to Investor; and
(xx) Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche NoticeExchange Act and the rules and regulations promulgated thereunder.
Appears in 1 contract
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to accept a Tranche Notice and to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) the representations and warranties of the Investor set forth in this Agreement shall be true and correct in all material respects as if made on such date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct as of such particular date, and the Investor shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such date;
(iv) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if anyCommitment Closing;
(ivv) all Common Shares shall have been timely delivered pursuant to (i) any Exercise Notice properly delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(vi) all previously-issued Common Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legendrestriction on resale;
(vii) none of the Company or any of its Subsidiaries is, or will be as a result of the applicable Tranche, in default of this Agreement or any Material Agreement (it being hereby acknowledged and agreed that for purposes of this paragraph (vii), the trigger of any antidilution, price-reset or similar provisions in any outstanding warrants or other derivative securities of the Company as a result of the applicable Tranche shall not be deemed a default of any Material Agreement, so long as such actions do not trigger a default under such Material Agreement);
(viii) there is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in this Agreement or by any of the other Transaction Documents, or requiring any consent or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or any other Transaction DocumentAgreement; no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement or any other Transaction Document; Agreement, and no actions, suits or proceedings shall be in progress, progress or pending or, to the Company’s knowledge, threatened, by any person (other than Investor or any Affiliate of Investor) that seek to enjoin or prohibit the transactions contemplated by this Agreement or any other Transaction Document(it being hereby acknowledged and agreed that for purposes of this paragraph (viii), no proceeding shall be deemed pending unless one of the parties hereto has received written notification thereof prior to the applicable Tranche Notice Date);
(viiiix) the Common Stock is listed or quoted on a Trading Market and the Company shall have obtained is in compliance with all governmental, regulatory or third party consents and approvals and shall have made all required filings, requirements in each caseorder to maintain listing on its then current Trading Market (including reporting requirements under the Exchange Act, if any, necessary for the sale and resale of the Securities, including without limitation, applicable);
(x) the Required Approval, if necessary, has been obtained;
(ixxi) either (A) the Company has a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit covering the lawful public resale by the Investor of all Common Shares underlying the Warrant (including the portion then issued or issuable upon exercise of the Warrant vesting on Warrant, or (B) all of the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Common Shares then held by the Investor or any of its Affiliatesare Rule 144 Eligible;
(x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewith;
(xixii) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance in such amount as may be required to fulfill its obligations issue all Common Shares issuable pursuant to the Transaction Documents and any other outstanding agreements between the Company and Investor and any Affiliate of Investorsuch Tranche, including including, without limitation limitation, all Commitment Fee Shares, Warrant Shares and Additional Investment Shares that are issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon exercise of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous Tranche;
(xiixiii) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;
(xiiixiv) the aggregate number of Common Warrant Shares issuable to Investorupon exercise of the Warrant based on the then-current anticipated exercise price(s) of the Warrant, aggregated with all other shares of Common Stock deemed beneficially owned by the Investor and its Affiliates would not cause Investor to exceed result in the Investor Ownership Limitbeneficially owning more than 9.99% of the Common Stock outstanding on the Tranche Notice Date, as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder;
(xivxv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary of the Effective Date)Notice, Investor shall have previously received the Commitment Fee;
(xvxvi) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada and shall be in full force and effect;Delaware; and
(xvixvii) all deliverables specified in Section 2.3(e) of this Agreement which are required to be delivered at or prior to the Tranche Notice Date shall have been delivered;
(xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviii) the Opinion, dated as of the Tranche Notice Date, shall be delivered to Investor;
(xix) the Warrant shall have been delivered to Investor; and
(xx) Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche Notice.
Appears in 1 contract
Samples: Securities Purchase Agreement (Daystar Technologies Inc)
Conditions Precedent to a Tranche Notice. The right of the Company to deliver a Tranche Notice and the obligation of the Investor to accept a Tranche Notice and to acquire and pay for the Preferred Shares with respect to such Tranche Notice are subject to the satisfaction, on each of the applicable Tranche Notice Date and the applicable Tranche Closing Date, of each of the conditions set forth below:
(i) the Common Stock (including without limitation, all Common Shares issued or issuable hereunder) shall be listed for trading or quoted on a Trading Market, the Company is in compliance with all requirements in order to maintain listing or quotation on a its then current Trading Market (including reporting requirements under the Exchange Act, if applicable), and to the Company’s knowledge there is no notice of any suspension or delisting with respect to the trading or quotation of the shares of Common Stock on the then applicable Trading Market;
(ii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as if made on each of the Tranche Notice Date and Tranche Closing Date, except for representations and warranties that are expressly made as of a particular date in which case, such representations and warranties shall be true and correct in all material respects as of such particular date (provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the Tranche Notice Date and Tranche Closing Date which specifically refers to the Disclosure Schedules, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the date of the Tranche Notice or Tranche Closing (as applicable) shall be deemed to update the Disclosure Schedules automatically and without any further action on the part of the Company), the Company shall have performed, satisfied and complied in all material respects with all covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Tranche Notice Date and Tranche Closing Date, and the Company shall deliver an Officer’s Closing Certificate to such effect to Investor, signed by an officer of the Company;
(iii) other than losses incurred in the ordinary course of business, there shall have been no Material Adverse Effect since the Closing or the prior Tranche Notice, if anyExecution Closing;
(iv) all Common Warrant Shares shall have been timely delivered to Investor pursuant to (i) any Exercise Notice or Exchange Notice (as the case may be) properly delivered to the Company under the terms of the Warrant and (ii) any Investment Right Exercise Notice delivered to the Company under the terms of this Agreement, in each case, prior to the applicable Tranche Notice Date and Tranche Closing Date;
(v) all Preferred Shares shall have been timely delivered pursuant to any previously delivered Tranche Notice prior to the applicable Tranche Notice Date;
(v) all Commitment Shares and Initial Purchase Shares, and all Tranche Shares relating to all prior Tranches (as applicable) shall have been timely delivered to Investor;
(vi) all previouslyat least seventy-issued Common Shares are DWAC Shares in electronic form and are then freely tradable by Investor and without restrictive legendfive (75) days has elapsed since the Execution Closing;
(vii) there is not then in effect any law, rule or regulation prohibiting or restricting none of the transactions contemplated in this Agreement Company or any of the other Transaction Documentsits Subsidiaries is at such time, or requiring any consent will be as a result of the applicable Tranche, in breach or approval which shall not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect default of prohibiting or adversely affecting any of the transactions contemplated by this Agreement Transaction Documents or any Material Agreement (it being hereby acknowledged and agreed that for purposes of this paragraph (vii), the trigger of any antidilution, price-reset or similar provisions in any outstanding warrants or other Transaction Document; derivative securities of the Company as a result of the applicable Tranche shall not be deemed a breach or default of any Material Agreement, so long as such actions do not trigger a breach or default under such Material Agreement);
(viii) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement or any other the Transaction Document; Documents, and no actions, suits or proceedings shall be in progress, progress or pending or, to the Company’s knowledge, threatened, by any person Person (other than Investor or any Affiliate of Investor) that seek seeks to enjoin enjoin, prohibit or prohibit otherwise adversely affect any of the transactions contemplated by the Transaction Documents (it being hereby acknowledged and agreed that for purposes of this Agreement or any other Transaction Documentparagraph (ix), no proceeding shall be deemed pending unless one of the parties hereto has received written notification thereof prior to the applicable Tranche Notice Date);
(viiiix) the Company shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each caseapprovals, if any, necessary for the sale and resale of the Securities, including without limitation, the Required Approval, if necessary;
(ix) a current, valid and effective Registration Statement and Prospectus shall be properly available for use, at all times from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), to permit the lawful public resale by the Investor of all Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates;
(x) to the extent required under the Act, the Company will, within the time period required by Rule 424 under the Act, file a prospectus supplement with respect to the giving of a Tranche Notice and the issuance and resale of Common Shares in connection therewith;
(xi) the Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance in such amount as may be required to fulfill its obligations pursuant to the Transaction Documents and any other outstanding agreements between the Company and with Investor and any Affiliate of Investor, including without limitation all Commitment Fee Shares, Warrant Shares issuable upon exercise of the Warrant issued in connection with such Tranche and any previous Tranche, and all Additional Investment Shares issuable upon exercise of any Investment Right Exercise Notice delivered in connection with such Tranche and any previous TrancheWarrant;
(xiixi) the Company has provided notice of its delivery of the Tranche Notice to all signatories of a Lock-Up Agreement as required under the Lock-Up Agreement;
(xiii) the aggregate number of Common Shares issuable to Investor, aggregated with all other shares of Common Stock deemed beneficially owned by Investor and its Affiliates would not cause Investor to exceed the Investor Ownership Limit;
(xiv) except in connection with the first Tranche Notice (unless such first Tranche Notice is after the six-month anniversary of the Effective Date), Investor shall have previously received the Commitment Fee;
(xvxii) the Certificate of Designations shall have been duly filed with, and accepted by, the Secretary of State of the State of Nevada Illinois and shall be remains in full force and effect;; and
(xvixiii) all deliverables specified in Section 2.3(e) of this Agreement which are required (together with such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as Investor or its counsel may reasonably request) to be delivered at or prior to by the Tranche Notice Date Company shall have been delivered;
(xvii) following any applicable notice and opportunity to cure, the Company is not, and will not be as a result of the applicable Tranche, in default of this Agreement, any other agreement between the Company and Investor or any Affiliate of Investor, or any other Material Agreement, and the Company shall deliver to Investor an Officer’s Closing Certificate, signed by an authorized officer of the Company, certifying as to the foregoing;
(xviii) the Opinion, dated as of the Tranche Notice Date, shall be delivered to Investor;
(xix) the Warrant shall have been delivered to Investor; and
(xx) Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the offering, sale and resale of the Securities in connection with such Tranche Notice.
Appears in 1 contract
