CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof: 6.1 The Company shall have duly executed and delivered this Agreement to the Holder. 6.2 The Company shall have filed the New Certificate of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder. 6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page of the Holder. 6.4 Each and every representation and warranty of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. 6.5 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchange, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date. 6.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements. 6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 2 contracts
Samples: Amendment and Exchange Agreement (Spherix Inc), Amendment and Exchange Agreement (Spherix Inc)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 The Company shall have filed paid the New Certificate Lead Investor Counsel Expenses to Gxxxxxxxx Traurig LLP by wire transfer of Designations U.S. dollars and immediately available funds in accordance with the Secretary written instructions of State of the State of Delaware and Gxxxxxxxx Txxxxxx LLP delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the HolderCompany on or prior to the Closing Date.
6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Exchange Shares and the Exchange Warrant in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 The Collateral Agent shall have instructed the Collateral Account Bank (as defined in the Notes) with respect to the Master Restricted Account to deliver the Release Amount to the Holder, in accordance with the written instructions of the Holder delivered to the Collateral Agent on or prior to the Closing Date.
6.5 The Company shall have delivered to the Holder a copy of each Other Agreement, duly executed and delivered by the Company and each Other Holder party thereto.
6.6 The Company shall have delivered to the Holder a certificate, in the form acceptable to the Holder, duly executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted by the Company’s board of directors, in a form reasonably acceptable to the Holder, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
6.7 Each and every representation and warranty of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Holder shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Holder in the form acceptable to the Holder.
6.5 6.8 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Amendment and the Exchange, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing DatePrincipal Market.
6.6 6.9 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 6.10 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 2 contracts
Samples: Amendment and Exchange Agreement (Worlds Inc), Amendment and Exchange Agreement (Worlds Inc)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 7.1 The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 The Company shall have filed the New Certificate of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 7.2 The Company shall have duly executed and delivered to the Holder the Exchanged Note.
7.3 The Company shall have delivered to the Holder Exchanged Preferred Shares a copy of each Other Agreement, duly executed and delivered by the Company and each Other Holder party thereto.
7.4 The Holder shall have received the opinion of Xxxxx & Xxxxxx, LLP, the Company’s counsel, dated as of the Closing Date, in such amounts as described below the Holder’s name on the signature page of form acceptable to the Holder.
6.4 7.5 The Company shall have delivered to the Holder a certificate, in the form acceptable to the Holder, duly executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted by the Company’s board of directors, in a form reasonably acceptable to the Holder, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
7.6 Each and every representation and warranty of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Holder shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Holder in the form acceptable to the Holder.
6.5 7.7 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangesale of the Securities, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing DatePrincipal Market.
6.6 7.8 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 7.9 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 2 contracts
Samples: Exchange Agreement (Pacific Ethanol, Inc.), Second Amendment and Exchange Agreement (Pacific Ethanol, Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 (b) The Company shall have filed the New Certificate holders of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company all outstanding Warrants shall have duly executed and delivered to the Holder Company either this Agreement or an Other Agreement;
(c) The Company shall have obtained the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page listing of all of the Holder.Exchange Shares on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each (d) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (e) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(f) Counsel for the Company shall have delivered a legal opinion to the Company's transfer agent instructing the transfer agent to deliver a number of Exchange Shares to the Holder equal to the Exchange Shares Number by crediting such Exchange Shares to the Holder's balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 3(a) hereof, and the Company's transfer agent shall have delivered such Exchange Shares to such balance account;
(g) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(h) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (LabStyle Innovations Corp.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 (b) The Company shall have filed the New Exchange Certificate of Designations in the form attached hereto as Exhibit A will have been filed prior to the Closing with the Secretary of State of the State of Delaware and delivered a certified copy will be in full force and effect, enforceable against the Company in accordance with its terms and will not have been amended;
(c) All of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware outstanding Initial Preferred Shares shall have been exchanged for Exchange Preferred Shares pursuant to the Holder.agreements substantially similar to this Agreement;
6.3 (d) The Company shall have duly executed and delivered to the Holder the Holder Exchanged number of the Exchange Preferred Shares in such amounts as described below set forth on the Holder’s name on the 's signature page attached hereto;
(e) A Special Event shall have occurred;
(f) The Company shall have obtained the listing of the Holder.Exchange Conversion Shares on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each (g) All of the Exchange Conversion Shares shall have been registered for resale by the Holder pursuant to a registration statement declared effective by the SEC or the Holder may sell all of the Exchange Conversion Shares without restriction or limitation pursuant to Rule 144 and every representation without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act;
(h) The representations and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (i) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and
(j) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchange, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementshereby.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement, the Registration Rights Agreement and the June Warrants and delivered this Agreement the same to the Holder.;
6.2 (b) The Company shall have filed the New Certificate of Designations Form 10-Q with the Secretary of State of SEC, in the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified form required by the Secretary 1934 Act;
(c) The Company’s Registration Statement on Form S-1 (Registration No. 333-252819) shall be effective and available for use by the Holder for the sale of State any shares issuable upon the exercise of the State of Delaware to the Holder.any January Warrants;
6.3 (d) The Company shall have duly executed and delivered to obtained the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page listing of all of the Holder.Exercised Warrant Shares and June Warrant Shares on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each (e) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (f) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(g) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the Exercised Warrant Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the Exercised Warrant Shares to such balance account;
(h) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(i) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 (b) The Company shall have filed the New Certificate of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company Other Holders shall have duly executed and delivered to the Holder Company the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page Other Agreements;
(c) All of the Holder.outstanding Warrants shall have been exchanged for Exchange Shares pursuant to this Agreement and the Other Agreements;
6.4 Each (d) The Company shall have obtained the listing of all of the Exchange Shares on each Eligible Market on which the Common Stock is then listed for trading;
(e) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (f) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(g) Counsel for the Company shall have delivered a legal opinion to the Company's transfer agent instructing the transfer agent to deliver the Exchange Shares as set forth on the Holder's signature page attached hereto, to the Holder's balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 3(a) hereof, and the Company's transfer agent shall have delivered such Exchange Shares to such balance account;
(h) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(i) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
Samples: Exchange Agreement (Ener-Core Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement, the Registration Rights Agreement and the May Warrants and delivered this Agreement the same to the Holder.;
6.2 (b) The Company shall have filed the New Certificate of Designations Form 10-Q with the Secretary of State of SEC, in the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified form required by the Secretary 1934 Act;
(c) The Company’s Registration Statement on Form S-1 (Registration No. 333-252819) shall be effective and available for use by the Holder for the sale of State any shares issuable upon the exercise of the State of Delaware to the Holder.any January Warrants;
6.3 (d) The Company shall have duly executed and delivered to obtained the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page listing of all of the Holder.Exercised Warrant Shares and May Warrant Shares on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each (e) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (f) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(g) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the Exercised Warrant Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the Exercised Warrant Shares to such balance account;
(h) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(i) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement, the Registration Rights Agreement and the November Warrants and delivered this Agreement the same to the Holder.;
6.2 (b) The Company’s Registration Statement on Form S-1 (Registration No. 333-260080) shall be effective and available for use by the Holder for the sale of any shares issuable upon the exercise of any Exercised Warrants;
(c) The Company shall have filed obtained the New Certificate listing of Designations with the Secretary of State all of the State of Delaware November Warrant Shares on each Eligible Market on which the Common Stock is then listed for trading;
(d) The representations and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 Each and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (e) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(f) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the Exercised Warrant Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the Exercised Warrant Shares to such balance account;
(g) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(h) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 The Company shall have paid the Lead Investor Counsel Expenses to Gxxxxxxxx Traurig LLP by wire transfer of U.S. dollars and immediately available funds in accordance with the written instructions of Gxxxxxxxx Txxxxxx LLP delivered to the Company on or prior to the Closing Date.
6.3 The Company shall have filed the New Amended Certificate of Designations with the Secretary of State of the State of Delaware Nevada and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware Nevada to the Holder.
6.3 6.4 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares Warrant in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 6.5 The Company shall have delivered to the Holder a copy of each Other Agreement, duly executed and delivered by the Company and each Other Holder party thereto.
6.6 The Holder shall have received the opinion of Cadwalader, Wxxxxxxxxx & Txxx, LLP, the Company’s counsel, dated as of the Closing Date, in the form reasonably satisfactory to the Holder.
6.7 The Holder shall have received the opinion of Cadwalader, Wxxxxxxxxx & Txxx, LLP, the Company’s counsel, to the Transfer Agent dated as of the Closing date, in the form reasonably satisfactory to the Holder.
6.8 The Holder shall have received the opinion of Lxxxxx Xxxxxx & Cxxxxxx, the Company’s Nevada Counsel, dated as of the Closing Date, in the form acceptable to the Holder.
6.9 The Company shall have delivered to the Holder a certificate, in the form acceptable to the Holder, duly executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted by the Company’s board of directors, in a form reasonably acceptable to the Holder, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
6.10 Each and every representation and warranty of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Holder shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Holder in the form acceptable to the Holder.
6.5 6.11 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Amendment and the Exchange, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing DatePrincipal Market.
6.6 6.12 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 6.13 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (China Shen Zhou Mining & Resources, Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 a. The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 b. The Company shall have filed delivered an instruction letter to the Company's transfer agent instructing the transfer agent to deliver the New Certificate of Designations with Common Shares to the Secretary of State of the State of Delaware and delivered a certified copy of the Holder by crediting such New Certificate of Designations as certified by the Secretary of State of the State of Delaware Common Shares to the Holder.'s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 1(b) hereof, counsel for the Company shall have delivered any legal opinion to the Company's transfer agent requested by the transfer agent in connection with such delivery and the Company's transfer agent shall have delivered such New Common Shares to such balance account;
6.3 c. The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares New Warrants (allocated in such amounts as described below the Holder shall request) being acquired by the Holder at the Closing pursuant to this Agreement, as set forth on the Holder’s name on the 's signature page attached hereto;
d. The Company shall have obtained the listing of the Holder.New Common Shares and the New Warrant Shares on each Trading Market on which the Common Stock is then listed for trading;
6.4 Each e. The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 f. The Company Common Stock (I) shall be designated for quotation or listed on the Trading Market and (II) shall not have obtained all governmentalbeen suspended, regulatory or third party consents and approvalsas of the Closing Date, if any, necessary for the Exchange, including without limitation, those required by the principal market in which Commission or the Common Stock of the Company is Trading Market from trading on the Trading Market as of the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated in writing by the Agreements.Commission or the Trading Market; and
6.7 g. The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement, the Registration Rights Agreement and the August Warrants and delivered this Agreement the same to the Holder.;
6.2 (b) The Company’s Registration Statement on Form S-1 (Registration No. 333-255692) shall be effective and available for use by the Holder for the sale of any shares issuable upon the exercise of any Existing Warrants;
(c) The Company shall have filed obtained the New Certificate listing of Designations with the Secretary of State all of the State of Delaware August Warrant Shares on each Eligible Market on which the Common Stock is then listed for trading;
(d) The representations and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 Each and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (e) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(f) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the Existing Warrant Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the Existing Warrant Shares to such balance account;
(g) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(h) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 (b) The Company shall have filed credited the New Certificate of Designations with the Secretary of State balance account of the State of Delaware and delivered a certified copy of Holder with The Depository Trust Company through its Deposit / Withdrawal at Custodian system (with such DWAC Instructions set forth in column (3) on Schedule I attached hereto) for the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.applicable Exchange Shares;
6.3 (c) The Company shall have duly executed and delivered to obtained the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page listing of all of the Holder.Listed Securities on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each (d) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the such Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the such Closing Date.;
6.5 (e) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) other than pursuant to and as set forth in the Nasdaq Letter (as defined below), shall not have been suspended, as of such Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of such Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(f) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the applicable Exchange Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the applicable Exchange Shares to such balance account;
(g) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby;
(h) Solely with respect to the Additional Closing, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Initial Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enactedoccurred; and
(i) Since the date hereof, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction no event that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 The Company could be reasonably expected to cause a Material Adverse Effect shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably requestoccurred.
Appears in 1 contract
Samples: Exchange and Amendment Agreement (Vinco Ventures, Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 a. The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 b. The Company shall have filed the New Series G-1 Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware and delivered a certified copy of shall be in full force and effect, enforceable against the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.Company in accordance with its terms and shall not have been amended;
6.3 c. The Company shall have duly executed and delivered to the Holder the Holder Exchanged Series G-1 the Preferred Shares (allocated in such amounts as described below the Holder shall request) being acquired by the Holder at the Closing pursuant to this Agreement, as set forth on the Holder’s name on the signature page attached hereto;
d. The Company shall have obtained the listing of the Holder.Series G-1 Conversion Shares on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each e. The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 f. The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market as of the Closing Date, in writing by the SEC or the Principal Market; and
g. The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchange, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.hereby; and
6.7 h. The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement, the Registration Rights Agreement and the September Warrants and delivered this Agreement the same to the Holder.;
6.2 (b) The Company’s Registration Statement on Form S-1 (Registration No. 333-258106) shall be effective and available for use by the Holder for the sale of any shares issuable upon the exercise of any Exercised Warrants;
(c) The Company shall have filed obtained the New Certificate listing of Designations with the Secretary of State all of the State of Delaware September Warrant Shares on each Eligible Market on which the Common Stock is then listed for trading;
(d) The representations and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 Each and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (e) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(f) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the Exercised Warrant Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the Exercised Warrant Shares to such balance account;
(g) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(h) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (i) The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 The Company shall have filed the New Certificate of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 (ii) The Company shall have duly executed and delivered to the Holder the Exchanged Notes and Exchanged Warrants.
(iii) The Holder Exchanged Preferred Shares shall have received an opinion of counsel to the Company, dated as of the Closing Date, in such amounts as described below the Holder’s name on the signature page of form and substance reasonably acceptable to the Holder.
6.4 (iv) Each of the Other Holders shall have (i) executed agreements identical to this Agreement (the “Other Agreements”), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and every representation (iii) surrendered their Original Notes for the Exchanged Notes and warranty Exchanged Warrants.
(v) The representations and warranties of the Company contained herein in this Agreement and the other Transaction Documents (as modified by the Exceptions as of the date hereof) shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (Date, except for representations and warranties that speak as of a specific particular date, which shall be true and correct in all respects as of such date.
(vi) and the The Company shall have performed, satisfied and complied in all material respects with the all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.
6.5 (vii) The Company Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have obtained all governmentalbeen suspended, regulatory or third party consents and approvalsas of the Closing Date, if any, necessary for the Exchange, including without limitation, those required by the principal market in which Commission or the Common Stock of the Company is Principal Market from trading on the Principal Market nor, except as disclosed in the Exceptions, shall suspension by the Commission or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the Commission or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. The Exchanged Warrant Shares and the Exchanged Conversion Shares shall have been approved for listing on the Principal Market, subject only to official notice of issuance.
6.6 (viii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that which prohibits the consummation of any of the transactions contemplated by the Agreementsthis Agreement.
6.7 (ix) No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been threatened, against the Company or any Subsidiary or any Purchaser, or any of the officers, directors or affiliates of the Company or any Subsidiary or any Purchaser seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
(x) The Company shall have delivered to such Purchaser a certificate, signed by the Holder such other documents relating Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions adopted by its board of directors approving the transactions contemplated hereby, (ii) its charter, as in effect at the Closing Date, (iii) its bylaws, as in effect at the Closing Date, and (iv) the authority and incumbency of the officers executing this Agreement, the Notes or any other documents required to be executed or delivered in connection therewith.
(xi) The Company shall have delivered to such Purchaser a certificate signed by an executive officer on behalf of the Company, dated as of the Closing Date, confirming the accuracy of the Company’s representations, warranties and performance of covenants as of the Closing Date.
(xii) No change having a Material Adverse Effect shall have occurred since the date of this Agreement as the Holder or its counsel may reasonably requestAgreement.
Appears in 1 contract
Samples: Waiver, Amendment and Exchange Agreement (Ener1 Inc)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 The Company shall have filed the New Certificate of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 (b) The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares Exchange Note in such amounts as described below the principal amount set forth on the Holder’s name signature page attached hereto;
(c) Subject to the Blocker Provision, the Company shall, or shall direct its transfer agent to, credit the Holder’s account with DTC with the Exchange Common Shares in accordance with the DTC instructions set forth on the Holder’s signature page attached hereto;
(d) The Company shall have paid the Exchange Cash Amount to the Holder in cash by wire transfer of immediately available funds pursuant to the Holder’s wire instructions set forth on the Holder’s signature page attached hereto;
(e) The Company shall have paid the Installment Amount Cash Payments to the Holder in cash by wire transfer of immediately available funds pursuant to the Holder’s wire instructions set forth on the Holder’s signature page attached hereto;
(f) The Company shall have obtained the listing of the Holder.Exchange Common shares and the Exchange Conversion Shares on each Eligible Market (as defined in the Exchange Note) on which the Common Stock is then listed for trading;
6.4 Each (g) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (h) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market as of the Closing Date, in writing by the SEC or the Principal Market; and
(i) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchange, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementshereby.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
Samples: Exchange Agreement (Altimmune, Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (i) The Company shall have duly executed this Agreement and delivered this Agreement the same to the Holder.;
6.2 The Company shall have filed the New Certificate of Designations with the Secretary of State of the State of Delaware and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company (ii) All Other Holders shall have duly executed and delivered to the Company either this Agreement or an Other Agreement;
(iii) The Company shall have electronically delivered to the Holder the Holder Exchanged Preferred number of Converted Shares in such amounts as described below set forth on the Holder’s name 's signature page attached hereto in accordance with Section 2(a) hereof;
(iv) The Collateral Agent shall have issued and delivered an executed written instruction letter to the Bank instructing the Bank to send from the Control Account the amount set forth on the Holder's signature page by wire transfer of immediately available funds to the Holder pursuant to the Holder's wire instructions set forth on the Holder's signature page (the "Holder Control Account Release");
(v) The Bank shall have effected the Holder Control Account Release;
(vi) The Company shall have obtained the listing of all of the Holder.Converted Shares on each Eligible Market on which the Common Stock is then listed for trading;
6.4 Each (vii) The representations and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (viii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(ix) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(x) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
Samples: Conversion and Redemption Agreement (Ener-Core Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 7.1 The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 7.2 The Company shall have filed paid the New Certificate Lead Investor Counsel Expenses to Xxxxxxxxx Traurig LLP by wire transfer of Designations U.S. dollars and immediately available funds in accordance with the Secretary written instructions of State of the State of Delaware and Xxxxxxxxx Xxxxxxx LLP delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the HolderCompany on or prior to the Closing Date.
6.3 7.3 The Company shall have duly executed and delivered to the Holder the Exchanged Note and the Exchanged Warrant.
7.4 The Company shall have delivered to the Holder Exchanged Preferred Shares a copy of each Other Agreement, duly executed and delivered by the Company and each Other Holder party thereto.
7.5 The Holder shall have received the opinion of Xxxxx & Xxxxxx, LLP, the Company’s counsel, dated as of the Closing Date, in such amounts as described below the Holder’s name on the signature page of form acceptable to the Holder.
6.4 7.6 The Company shall have delivered to the Holder a certificate, in the form acceptable to the Holder, duly executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted by the Company’s board of directors, in a form reasonably acceptable to the Holder, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
7.7 Each and every representation and warranty of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Holder shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Holder in the form acceptable to the Holder.
6.5 7.8 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangesale of the Securities, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing DatePrincipal Market.
6.6 7.9 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 7.10 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Pacific Ethanol, Inc.)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder in respect of itself at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 (a) The Company shall have duly executed this Agreement, the Registration Rights Agreement and the December Warrants and delivered this Agreement the same to the Holder.;
6.2 (b) The Company’s Registration Statement on Form S-1 (Registration No. 333-260080) shall be effective and available for use by the Holder for the sale of any shares issuable upon the exercise of any Exercised Warrants;
(c) The Company shall have filed obtained the New Certificate listing of Designations with the Secretary of State all of the State of Delaware December Warrant Shares on each Eligible Market on which the Common Stock is then listed for trading;
(d) The representations and delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the Holder.
6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 Each and every representation and warranty warranties of the Company contained herein under this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.;
6.5 (e) The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(f) Counsel for the Company shall have delivered a legal opinion to the Company’s transfer agent instructing the transfer agent to deliver the Exercised Warrant Shares to the Holder’s balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with the provisions of Section 2(a) hereof, and the Company’s transfer agent shall have delivered the Exercised Warrant Shares to such balance account;
(g) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangetransactions contemplated hereby; and
(h) Since the date hereof, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing Date.
6.6 No statute, rule, regulation, executive order, decree, ruling or injunction no event that could be reasonably expected to cause a Material Adverse Effect shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreementsoccurred.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 8.1 The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 8.2 The Company shall have filed paid the New Certificate Lead Investor Counsel Expenses to Xxxxxxxxx Xxxxxxx LLP by wire transfer of Designations U.S. dollars and immediately available funds in accordance with the Secretary written instructions of State of the State of Delaware and Xxxxxxxxx Traurig LLP delivered a certified copy of the New Certificate of Designations as certified by the Secretary of State of the State of Delaware to the HolderCompany on or prior to the Closing Date.
6.3 8.3 The Company shall have duly executed and delivered to the Holder the Exchanged Note and the Exchanged Warrant.
8.4 The Company shall have delivered to the Holder Exchanged Preferred Shares a certificate, in such amounts as described below the form acceptable to the Holder’s name on , duly executed by the signature page Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted by the Company’s board of directors, in a form reasonably acceptable to the Holder, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
6.4 8.5 Each and every representation and warranty of the Company contained herein and in Section 3 of the Securities Purchase Agreement (other than the representations and warranties set forth in clauses (a) through (e), (k), (r) and (pp) and the second to last sentence of clause (n) of Section 3 of the Securities Purchase Agreement) shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date); provided, however, that (i) the defined term “SEC Documents” as used in the Securities Purchase Agreement shall have the meaning set forth in Section 4.8 hereto, (ii) the references to February 2, 2013 set forth in Section 3(l) of the Securities Purchase Agreement shall be deemed to be references to May 28, 2014, and (iii) the third sentence of Section 3(x) of the Securities Purchase Agreement shall be deemed to be amended by adding the following at the end of such sentence : “except for infringement that would not reasonably be expected to have a Material Adverse Effect”. The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions set forth herein required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Holder shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect in the form reasonably acceptable to the Holder.
6.5 8.6 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Exchangesale of the Securities, including without limitation, those required by the principal market in which the Common Stock of the Company is trading on the Closing DatePrincipal Market.
6.6 8.7 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
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Samples: Amendment, Consent and Exchange Agreement (Wet Seal Inc)
CONDITIONS TO HOLDER’S OBLIGATIONS HEREUNDER. The obligations of the Holder hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s 's sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
6.1 7.1 The Company shall have duly executed and delivered this Agreement to the Holder.
6.2 7.2 The Company shall have filed delivered to the New Certificate Holder a copy of Designations with the Secretary of State of the State of Delaware each Other Agreement, duly executed and delivered by the Company and each Other Holder party thereto.
7.3 The Company shall have delivered to the Holder a certified copy of certificate, in the New Certificate of Designations as certified form acceptable to the Holder, duly executed by the Secretary of State the Company and dated as of the State Closing Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted by the Company’s board of Delaware directors, in a form reasonably acceptable to the Holder, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the Closing.
6.3 The Company shall have duly executed and delivered to the Holder the Holder Exchanged Preferred Shares in such amounts as described below the Holder’s name on the signature page of the Holder.
6.4 7.4 Each and every representation and warranty of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date.
6.5 . The Company Holder shall have obtained all governmentalreceived a certificate, regulatory or third party consents and approvals, if any, necessary for the Exchange, including without limitation, those required duly executed by the principal market in which the Common Stock Chief Executive Officer of the Company is trading on Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Holder in the form acceptable to the Holder.
6.6 7.5 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Agreements.
6.7 7.6 The Company shall have delivered to the Holder such other documents relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
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