CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, without limitation, its obligation to purchase a Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date: 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date); 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; 5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; 5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents); 5.1.6 the Company shall have delivered to such Investor the duly executed Note being purchased by such Investor at the Closing; 5.1.7 the Company shall have executed and delivered to such Investor all of the Transaction Documents; 5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the Board of Directors, authorizing the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein; 5.1.9 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and 5.1.10 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.
Appears in 1 contract
Samples: Note Purchase Agreement (Applied Digital Solutions Inc)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;[Reserved]
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer executed and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents);
5.1.6 the Company shall have delivered to such Investor the duly executed Note and the Warrant being purchased by such Investor at the Closing;
5.1.7 5.1.5 the Company shall have executed and delivered to such Investor all of the Transaction DocumentsRegistration Rights Agreement and the Security Agreement, and each Company Subsidiary shall have executed and delivered to such Investor the Security Agreement and the Subsidiary Guarantee;
5.1.8 5.1.6 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate articles of Incorporation, Byincorporation and by-Laws or similar governing documents laws of the Company, Company and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and (iii) resolutions passed by the respective boards of directors of the Company Subsidiaries to authorize the transactions contemplated by the Security Agreement and the Subsidiary Guarantee, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 5.1.7 the Company shall have obtained the written agreement of the Key Employees listed on Schedule 4.2(f) to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(f) of this Agreement;
5.1.8 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and;
5.1.9 the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock required to be authorized and reserved under Section 4.3;
5.1.10 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents; and
5.1.11 the Company shall have paid the expenses described in Section 6.10 of this Agreement.
Appears in 1 contract
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each The obligations of the Investor to subscribe for Series C Preferred Shares at the Closing are subject to the fulfillment or Investor’s obligations to effect waiver, at or before the Closing, including, without limitation, its obligation to purchase a Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Dateconditions:
5.1.1 the 3.1. The representations and warranties of made by the Founder and the Company set forth in this Agreement pursuant to Section 5 hereof shall remain true, accurate and in the other Transaction Documents shall be true and correct complete in all material respects as of such date as if made on such date (except the Closing Date, provided that to the extent that any such representation or warranty relates to a particular datestatements contained in Sections 1, such representation or warranty 2, 3, 4, 7, 10, 12, 18, 21 and 24 of EXHIBIT A shall be true remain true, accurate and correct complete in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, in each case except for those representations and warranties that is in form address matters only as of a particular date, which shall be true and substance reasonably acceptable to accurate as of such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)particular date;
5.1.6 3.2. The Founder and the Company shall have delivered performed and complied in all respects with all agreements, obligations and conditions required in this Agreement to such Investor be performed or complied with by it prior to or on the duly executed Note being purchased by such Investor at the ClosingClosing Date;
5.1.7 3.3. The Parties have completed all necessary corporate or internal approvals and other proceedings in connection with the Company shall Transaction contemplated hereby, and have executed obtained all approvals, consents and delivered to such Investor all waivers necessary for consummation of the Transaction Documentscontemplated by this Agreement;
5.1.8 the 3.4. The Company shall have has delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching Investor:
(ia) the Certificate of Incorporation, By-Laws or similar governing documents of the Company, audited consolidated balance sheet and (ii) resolutions passed by the Board of Directors, authorizing the transactions contemplated hereby audited profit and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty loss account of the Company made herein(including the Subsidiaries and VIE Affiliates on the consolidated basis) for the three years ended the fiscal year of 2018, together, with any notes, reports, statements or documents included in or annexed or attached to them, audited in accordance with GAAP; or
(b) in the event that the financial statements as referred in (a) above are not audited in accordance with GAAP, such statements as have been the subject of review by the auditors in accordance with GAAP; or
(c) a separate financial due diligence report in all cases, for a financial period ended no more than nine (9) months prior to the Closing Date and which are satisfactory to the Investor (collectively as “Financial Statement”);
5.1.9 there shall have occurred 3.5. The Investor, with the support from its legal counsel and other professional advisers, has completed due diligence investigation of the Company to its satisfaction;
3.6. An original of the Deed of Guarantee attached hereto as EXHIBIT D (the “Guarantee Deed”) has been duly executed by the Company Guarantors;
3.7. The Company has delivered to the Investor (a) written evidence of completion of registration with the relevant regulatory authorities of the Share Pledge of the Hunan Operating Entity and (b) certificates of good standing and certificates of incumbency dated no material adverse change more than three (3) months prior to the Closing Date in respect of the Company and its subsidiary incorporated in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and
5.1.10 there shall be no injunctionBritish Virgin Islands, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.namely YX International Holding Ltd.
Appears in 1 contract
Samples: Series C Preferred Shares Purchase Agreement (YX Asset Recovery LTD)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 (a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 (b) prior to the Closing Date the Company shall have filed the Amended Charter with the Secretary of State of Delaware authorizing a number shares of Common Stock sufficient to issue the Securities, which Amended Charter shall continue to be in full force and effect as of the Closing Date and shall be in a form acceptable to Battery;
(c) the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 (d) the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1Section 6.1(a), 5.1.26.1(c), 5.1.9 6.1(k), 6.1(1), 6.1(m) and 5.1.10 of this Section 5.1 6.1(n) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 (e) the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable satisfactory to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)Investor;
5.1.6 (f) the Company shall have delivered to such Investor the duly executed Note certificates representing the Shares and the Warrants being purchased by such Investor at the ClosingInvestor, as applicable;
5.1.7 (g) the Company shall have executed and delivered to such the Investor all of the Transaction DocumentsRegistration Rights Agreement;
5.1.8 (h) the Company shall deliver to each Investor who requests it, a management rights letter which shall be in a form acceptable to Battery.
(i) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, charter and By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 (j) the Company shall have obtained the written agreement of each Specified Employee and critical consultant of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof;
(k) there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and;
5.1.10 there (1) the Common Stock shall be no injunctiontraded on the OTCBB or listed on the Nasdaq Capital Market, restraining order the Nasdaq Global Market, the Nasdaq Global Select Market or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.New York Stock Exchange;
Appears in 1 contract
Samples: Securities Purchase Agreement (Champions Oncology, Inc.)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note the Purchased Shares at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 (a) the representations and warranties of the Company set forth and the Executive Shareholder shall be true and correct in this Agreement all respects, if qualified by materiality, and in the other Transaction Documents shall be true and correct in all material respects respects, if not qualified by materiality, at and as of the Closing with the same effect as though made at and as of such date as if made on such date time (except that to the extent those representations and warranties that any such representation or warranty relates to are made as of a particular date, such representation or warranty specific date shall be true correct only as of such date);
(b) the Company shall have duly performed and correct complied in all material respects as of that particular date);
5.1.2 the Company shall have with all covenants contained herein required to be performed or complied with or performed by it in all material respects all connection with the consummation of the agreements, obligations transactions contemplated hereby and conditions set forth in this Agreement and in by the other Transaction Documents that are required to be complied with or performed by the Company on at or before the Closing;
5.1.3 (c) the Company shall have obtained all approvals, acknowledgements and consents, as applicable, from the relevant parties, including the Board of Directors, the Consenting Parties and any Governmental Authorities;
(d) the Company shall have obtained a written waiver (the “Waiver”)”) in substantially the form attached hereto as Exhibit E from the Private Placement Investors with respect to the waiver of their right of first refusal under Section 6.14 of the Preferred Stock Purchase Agreement;
(e) the Closing Date shall occur on not be a date that which is not later than December 29March 17, 20052010, or such other date as the parties may agree in writing (the “Latest Closing Date”);
5.1.4 (f) the Company shall have delivered or caused to be delivered to Investor at the Closing:
(i) duly executed certificates evidencing the Purchased Shares in such denominations and registered in the name of Investor as set forth Schedule I hereto as supplemented or amended from time to time prior to the Closing;
(ii) a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyCompany and dated as of the Closing Date, certifying that all the closing conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled are satisfied as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 (iii) the Company shall have delivered to such Investor an opinion a certificate, signed by the Chief Executive Officer or opinions the Secretary of counsel for the Company, Company and dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents);
5.1.6 the Company shall have delivered to such Investor the duly executed Note being purchased by such Investor at the Closing;
5.1.7 the Company shall have executed and delivered to such Investor all of the Transaction Documents;
5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate Articles of Incorporation, Incorporation and By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the its Board of Directors, Directors and shareholders of the Company authorizing the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 (iv) the Company shall have delivered to Investor a certificate, signed by the Chief Executive Officer that the Certificate of Designation has been adopted and filed;
(v) legal opinions of New York counsel and Nevada counsel for the Company or a legal opinion covering both New York and Nevada matters from Xxxxx Xxxxxxx LLP, dated as of the Closing Date, in forms reasonably satisfactory to Investor;
(vi) a legal opinion of the PRC counsel for the Company, dated as of the Closing Date, in a form satisfactory to Investor;
(vii) an Escrow Agreement duly executed by the Company and the Escrow Agent; and
(viii) the Share Pledge Agreement executed by the Executive Shareholder;
(g) there shall not exist any condition or have occurred no material adverse any change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; andSEC Documents that would reasonably likely to result in a Material Adverse Effect;
5.1.10 (h) the Company shall have entered into an employment agreement with each of the Key Employees in substantially the form attached hereto as Exhibit F;
(i) the Certificate of Designation has been adopted by the Company and filed with the Secretary of the State of the State of Nevada;
(j) the Company shall continue to meet its eligibility requirements for the quotation of its Common Shares on the OTCBB;
(k) the Company shall be in compliance, in all material respects, with each of the FINRA, NASD and SEC rules applicable to the OTCBB and the Company shall not have received any notice from OTCBB, FINRA, NASD or SEC that the Company may not be in such compliance, and there shall be no facts or circumstances existing that could be the basis for any non-compliance or notice of any non-compliance;
(l) as of the Closing, the lease agreement between Konzern and No. 76171 Force of People's Liberation Army in relation to the warehouse located at Xx. 00, Xxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxxxx for the purpose of the storage of medicine and other medical products shall have been renewed and the GSP license granted to Konzern with respect to such warehouse shall not have been affected by the expiry and renewal of the lease;
(m) Konzern shall have obtained the approvals from the Governmental Authorities in the PRC for the increase of registered capital or total investment of Konzern for an amount no less than the Common Shares Purchase Price;
(n) the approval for environmental impact inspection reports, examination report of environmental protection on the completion of the construction project, and waste discharge permit issued by local environmental protection bureau regarding the construction and expansion of all of LifeTech’s plants have been obtained and all of the waste discharge fees have been paid up;
(o) there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents;
(p) the waiting period under the HSR Act with respect to the transactions contemplated by this Agreement shall have expired or been terminated;
(q) the terms and conditions of any agreements between Peak Capital and the Company shall have amended to such terms and conditions as have been agreed to by Investor in writing; and
(r) the Company shall have furnished to the Investors a certificate stating that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
Appears in 1 contract
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 (a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 (b) prior to the Closing Date the Company shall have filed the Amended Charter with the Secretary of State of Delaware authorizing a number shares of Common Stock sufficient to issue the Securities, which Amended Charter shall continue to be in full force and effect as of the Closing Date and shall be in a form acceptable to Battery;
(c) the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 (d) the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1Section 6.1(a), 5.1.26.1(c), 5.1.9 6.1(k), 6.1(l), 6.1(m) and 5.1.10 of this Section 5.1 6.1(n) have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 (e) the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable satisfactory to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)Investor;
5.1.6 (f) the Company shall have delivered to such Investor the duly executed Note certificates representing the Shares and the Warrants being purchased by such Investor at the ClosingInvestor, as applicable;
5.1.7 (g) the Company shall have executed and delivered to such the Investor all of the Transaction DocumentsRegistration Rights Agreement;
5.1.8 (h) the Company shall deliver to each Investor who requests it, a management rights letter which shall be in a form acceptable to Battery.
(i) the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, charter and By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 (j) the Company shall have obtained the written agreement of each Specified Employee and critical consultant of the Company to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.1(k) hereof;
(k) there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and;
5.1.10 (l) the Common Stock shall be traded on the OTCBB or listed on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange;
(m) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise);
(n) there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents;
(o) the Company shall have waived any applicable anti-takeover measures under Delaware law or the Company’s charter documents that may be triggered by the actions set forth in the Transaction Documents;
(p) the Company and the Investors shall have made filings, if any, required by the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act, as amended; and
(q) the Company shall have executed an indemnification agreement with the Battery Member, in a form satisfactory to Battery, and shall include the Battery Member on the Company’s D&O Insurance Policy.
Appears in 1 contract
Samples: Securities Purchase Agreement (Champions Biotechnology, Inc.)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29August 15, 20052006;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyCompany and dated as of the Closing Date, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is covering the matters set forth in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)Exhibit C;
5.1.6 the Company shall have delivered to such Investor the duly executed Note certificates representing the Shares and the Warrants being purchased by such Investor at the Closing;
5.1.7 the Company shall have executed and delivered to such the Investor all of the Transaction DocumentsRegistration Rights Agreement on or prior to the Closing;
5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the CompanyCompany and dated as of the Closing Date, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents charter and Bylaws of the Company, and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents;
5.1.10 the Common Stock shall be listed and actively traded on the Nasdaq Global Market; and
5.1.10 5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lipid Sciences Inc/)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Shares at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyCompany and dated as of the Closing Date, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 5.1.4 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is covering the matters set forth in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)Exhibit B;
5.1.6 5.1.5 the Company shall have delivered to such Investor the duly executed Note certificates representing the Shares being purchased by such Investor at the Closing;
5.1.7 5.1.6 the Company shall have executed and delivered to such the Investor all of the Transaction DocumentsRegistration Rights Agreement on or prior to the Closing;
5.1.8 5.1.7 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the CompanyCompany and dated as of the Closing Date, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents charter and Bylaws of the Company, and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 5.1.8 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents;
5.1.9 the Common Stock shall be listed and actively traded on the Nasdaq Global Market; and
5.1.10 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents.
Appears in 1 contract
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Debenture and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 5.1.4 the Company shall have delivered to such Investor an opinion or reasonably acceptable opinions of counsel for the CompanyCompany and of counsel for the Company Subsidiaries, dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents);
5.1.6 5.1.5 the Company shall have executed and delivered to such Investor the duly executed Note Debenture and the Warrant being purchased by such Investor at the Closing;
5.1.7 5.1.6 the Company shall have executed and delivered to such Investor all of the Transaction DocumentsRegistration Rights Agreement, the Security Agreement and the Subsidiary Guarantee, each Company Subsidiary shall have executed and delivered to such Investor the Security Agreement and the Subsidiary Guarantee, and certificates evidencing the Pledged Securities (as defined in the Security Agreement) shall have been delivered to Imperium Advisers, LLC, as collateral agent;
5.1.8 5.1.7 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate certificate of Incorporation, Byincorporation and by-Laws or similar governing documents laws of the Company, Company and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and (iii) resolutions passed by the respective boards of directors of the Company Subsidiaries to authorize the transactions contemplated by the Security Agreement and the Subsidiary Guarantee, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.8 the Company shall have obtained the written agreement of the Key Employees listed on Schedule 4.2(f) to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(f) of this Agreement;
5.1.9 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and;
5.1.10 the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock required to be authorized and reserved under Section 4.3;
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents;
5.1.12 the Investors shall have completed their due diligence to their satisfaction;
5.1.13 the Company shall have, or shall have caused Signature to, deliver to the Investors a written consent executed by the Royal Bank of Scotland and the National Westminster Bank that consents to the security interest and Liens being granted by Signature in favor of the Investors under the Security Agreement; and
5.1.14 the Company shall have paid the expenses described in Section 6.10 of this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Applied Digital Solutions Inc)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, without limitation, its The obligation of each Investor to purchase a Note and pay for the Shares at the Closing, are conditioned upon Closing is subject to the fulfillment following conditions (or waiver by such Investor in its sole and absolute discretion) of each except to the extent any particular condition is not fulfilled as the result of the following events as breach of the Closing Date:this Agreement by an Investor, in which case such condition shall not apply to such obligation of such Investor):
5.1.1 (1) Each of the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents Section 3 hereof shall be true true, complete and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date date, as if made on such date (except that certified by the Chief Executive Officer of the Company in a certificate provided to the extent that any such representation or warranty relates to a particular dateInvestors.
(2) All covenants, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations agreements and conditions set forth contained in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 prior to the Closing Date shall occur on have been performed or complied with, as certified by the Chief Executive Officer of the Company in a date that is not later than December 29, 2005;certificate provided to the Investors.
5.1.4 the (3) The Company shall have delivered to such Investor the Investors (1) a certificate, signed by the Chief Executive Officer and Chief Financial Officer copy of the CompanyCharter Amendment, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents);
5.1.6 the Company shall have delivered to such Investor the duly executed Note being purchased by such Investor at the Closing;
5.1.7 the Company shall have executed and delivered to such Investor all of the Transaction Documents;
5.1.8 the Company shall have delivered to such Investor a certificate, signed certified by the Secretary or an Assistant of State of the State of Delaware, (2) a copy of its Bylaws (the “Bylaws”), as certified by the Secretary of the Company, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents of the Company, and (ii3) resolutions passed approved by the Board of DirectorsDirectors authorizing the transactions contemplated hereby and in full force and effect at the time of Closing, (4) resolutions approved by the Company’s stockholders authorizing the filing of the Charter Amendment and approving the transactions contemplated hereby and in full force and effect at the time of Closing, and (5) good standing certificates (including tax good standing) with respect to the Company from the applicable authority in Delaware dated a recent date before the Closing.
(4) The Investors shall have received an opinion of Xxxxxx & Xxxxxxx, counsel to the Company, in form and substance acceptable to the Investors.
(5) The Investor Receivables shall have been released from escrow to the Investors.
(6) The Investors shall have received a certificate of the Secretary of the Company certifying that the Investor Receivables have been deposited with the Escrow Agent.
(7) The Company shall have obtained all necessary consents of and made all required filings with any governmental authority or agency or third party required to be obtained prior to the Closing under applicable law and relating to the consummation of the transactions contemplated hereby, including the filing of an information statement with the SEC, compliance with all requirements of the SEC with respect thereto, the mailing of such information statement to the Company’s stockholders and requisite time shall have passed since mailing.
(8) No Proceeding (as defined below) shall be pending, this Agreement shall not have been terminated pursuant to Section 9.P below, and no temporary restraining order, preliminary or permanent injunctions or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or provision challenging the transactions contemplated hereby or materially limiting or restricting the conduct or operation of the business of the Company prior to or following the Closing shall be in effect, nor shall any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality seeking any of the foregoing be pending.
(9) The stockholders of the Company shall have approved the transactions contemplated hereby and by the other Transaction Documents, and certifying Exchange Agreement (provided that such documents are true and complete copies each of the originals and that Investors hereby agrees to provide such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the approval).
(10) The Company made herein;
5.1.9 there shall have occurred no material adverse change entered into an Exchange Agreement with Cisco Systems, Inc., CSCC, Cogent Communications, Inc and Cogent Internet, Inc. substantially in the Company’s consolidated business or financial condition since form attached hereto as Exhibit F (the date “Exchange Agreement”), pursuant to which, among other things certain of the Company’s most recent financial statements contained in indebtedness to CSCC will be canceled, the Disclosure Documents; and
5.1.10 there Warrants will be canceled, Series F Preferred Stock will be issued to CSCC (such transaction herein referred to as the “Cisco Exchange”), CSCC shall be no injunctionhave performed its obligations thereunder and pursuant to the Escrow Agreement (as defined below), restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of and the transactions contemplated hereby or by the Exchange Agreement shall have been consummated.
(11) The Company shall have delivered to the Escrow Agent certificates, in the names of each Existing Investor representing the Shares to be purchased by each Existing Investor as set forth on Exhibit A hereto; provided, however, that (i) the Company hereby covenants and agrees that it shall not so deliver such certificates (and such certificates shall not otherwise be delivered to the Escrow Agent) or file the Charter Amendment and the Certificates of Designation with the Secretary of State of the State of Delaware unless and until the holder or holders of at least two-thirds of the outstanding Shares of the Investor Preferred Stock (on an as-if issued basis) shall have confirmed to the Company in a writing (making reference to this Section 2.A(10)) that all other Transaction Documentsconditions contained in this Section 2.A. have been duly satisfied in full or waived in writing by each of the Investors; and (ii) the Investors hereby covenant and agree that, upon the satisfaction or waiver all other conditions contained in this Section 2.A., they will provide the foregoing written confirmation to the Company (it being understood and agreed that (x) the Investors shall in connection therewith be entitled to rely upon any certificates, representations, warranties or other statements made by the Company, including any certificate provided under Section 2.A.(1) hereof and (y) the Company shall not be required pursuant to the foregoing clause (x) to provide any such certificate, representation, warranty or other statement that is not otherwise contemplated by another provision of this Agreement).
(12) The holders of at least two thirds of the outstanding shares of the Company’s Series A Participating Convertible Preferred Stock, par value $.001 per share (the “Series A Preferred Stock”), the Company’s Series B Participating Convertible Preferred Stock, par value $.001 per share (the “Series B Preferred Stock”), the Company’s Series C Participating Convertible Preferred Stock, par value $.001 per share (the “Series C Preferred Stock”), the Company’s Series D Participating Convertible Preferred Stock, par value $.001 per share (the “Series D Preferred Stock”), and the Company’s Series E Participating Convertible Preferred Stock, par value $.001 per share (the “Series E Preferred Stock”), voting as a single class, shall have elected to convert all outstanding shares of the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock into Common Stock (as defined below) pursuant to Article 4(B)(3)(m) of the Company’s Third Amended and Restated Certificate of Incorporation, and all such shares shall have been converted into Common Stock (as defined below) pursuant thereto.
Appears in 1 contract
Samples: Participating Convertible Preferred Stock Purchase Agreement (Cogent Communications Group Inc)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 5.1.4 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in the form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)attached hereto as Exhibit D hereto;
5.1.6 5.1.5 the Company shall have executed and delivered to such Investor the duly executed Note and the Warrant being purchased by such Investor at the Closing;
5.1.7 5.1.6 the Company shall have executed and delivered to such Investor all of the Registration Rights Agreement and each other Transaction DocumentsDocument;
5.1.8 5.1.7 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, Byarticles and by-Laws or similar governing documents laws of the Company, Company and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.8 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(f) of this Agreement;
5.1.9 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and;
5.1.10 the Company shall have authorized and reserved for issuance upon conversion of the Notes and exercise of the Warrants two hundred percent (200%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Notes and exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such conversion or exercise);
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents; and
5.1.12 the Company shall have paid the expenses described in Section 6.10 of this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Zap)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a its Note at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 4.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 4.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 4.1.3 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer executed and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents);
5.1.6 the Company shall have delivered to such Investor the duly executed Note being purchased by such Investor at the Closing;
5.1.7 the Company shall have executed and delivered to such Investor all of the Transaction Documents;
5.1.8 4.1.4 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 5.1.5 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and;
5.1.10 5.1.6 there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents.
5.1.7 the Company shall have obtained all necessary waivers from Western Commercial Bank with respect to its Senior Secured Loan permitting it to enter into the Transaction Documents; and
Appears in 1 contract
Samples: Note Purchase Agreement (Aspyra Inc)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 6.1.1. the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects (unless such representation or warranty is by its terms qualified by materiality, in which case such representation or warranty shall be true and correct without further qualification under this Section 6.1.1) as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 6.1.2. the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 6.1.3. the Closing Date shall occur on a date that is not later than December 29May 30, 20052010;
5.1.4 6.1.4. the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 6.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 6.1.5. the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)Investor;
5.1.6 6.1.6. the Company shall have delivered to such Investor the duly executed certificates representing the Note and the Warrant being purchased by such Investor at the Closing;
5.1.7 6.1.7. each Subsidiary shall have executed and delivered the Subsidiary Guarantee and the Security Agreement;
6.1.8. the Company shall have executed and delivered to such Investor all of the Transaction DocumentsRegistration Rights Agreement and the Security Agreement;
5.1.8 6.1.9. the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, Incorporation and By-Laws or similar governing documents of the Company, Company and (ii) resolutions passed by the its Board of Directors, authorizing or a duly authorized committee thereof, to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 6.1.10. the Key Employees shall have executed and delivered Employment Agreements with the Company (the “Employment Agreements”) on terms reasonably satisfactory to such Investor, such terms to include a non-competition agreement with a term of five (5) years from termination of employment;
6.1.11. each Key Employee shall have delivered a letter to the Company stating that (i) he is not a party to any existing or pending litigation that might affect his ability to carry out his duties under the Employment Agreements, (ii) he irrevocably waives any and all rights he may have, pursuant to contract or otherwise, to any unpaid compensation, salary, bonus or other benefit or entitlement, that has accrued or becomes payable at any time prior to the Closing Date; provided, however, that each Key Employee shall be entitled to receive the accrued compensation set forth on Schedule 6.1.11 in the forms and at the times set forth on such schedule, and (iii) he is terminating, as of the Closing Date, any employment agreements to which he and the Company or any of its Subsidiaries are parties;
6.1.12. Xxx Xxxxxxxxxxxx shall have been appointed to the Board to fill an existing vacancy;
6.1.13. the Company shall have executed and delivered an agreement with Xxxxxxx Investments, Inc. (“Xxxxxxx”) whereby Xxxxxxx will agree (i) not to exercise its Put Option for 2,880,000 shares of Common Stock at an exercise price of $1.00 per share until the sale price for the Common Stock on the Principal Market exceeds $1.00 (subject to adjustment for stock splits, stock dividends and similar events) for sixty (60) consecutive days and (ii) Xxxxxxx will not be entitled to a “non-compete payment” under its non-competition agreement with the Company until the Company achieves positive annualized net positive cash flow from operations (determined in accordance with GAAP after deducting the amount of capital expenditures) of at least $750,000 for three (3) consecutive fiscal quarters;
6.1.14. there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; and
5.1.10 6.1.15. there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.
Appears in 1 contract
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each The --------------------------------------------------- Investor’s 's obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note the Purchased Securities at the Closing, are conditioned upon the fulfillment (or waiver by such the Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29October 21, 20052004;
5.1.4 the Company shall have delivered to such the Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section paragraph 5.1 have been fulfilled as of the Closing, it being understood that such the Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such the Investor an opinion one or more opinions of counsel for the Company, dated as of the Closing Date, that is in substantially the form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered to such the Investor the duly executed Note certificates representing the Shares, the Series C Warrant and the Series D Warrant being purchased by such Investor at the ClosingInvestor;
5.1.7 the Company shall have executed and delivered to such the Investor all of the Transaction DocumentsRegistration Rights Agreement;
5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the Board of Directors, authorizing the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 there shall have occurred no material adverse change in the Company’s 's consolidated business or financial condition since the date of the Company’s 's most recent financial statements contained in the Disclosure Documents;
5.1.9 the Common Stock shall be quoted and actively traded on the Nasdaq Stock Market; and
5.1.10 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Applied Digital Solutions Inc)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Debenture and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29February 4, 2005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in the form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)attached hereto as Exhibit F hereto;
5.1.6 the Company shall have delivered to such Investor the duly executed Note certificates representing the Debenture and the Warrants being purchased by such Investor at the ClosingInvestor;
5.1.7 the Company shall have executed and delivered to such the Investor all of the Transaction DocumentsRegistration Rights Agreement;
5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, charter and By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the its Board of Directors, authorizing Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 the Company shall have executed and delivered the Collateral Agreement;
5.1.10 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(h) hereof;
5.1.11 there shall have occurred no material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents;
5.1.12 the Common Stock shall be listed on the Nasdaq SmallCap Market;
5.1.13 the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon conversion of all of the Debentures and exercise of all of the Series A Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such conversion or exercise); and
5.1.10 5.1.14 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Verso Technologies Inc)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 (a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 (b) the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than December 29, 2005;
5.1.4 (c) the Company shall have delivered to such Investor a certificateduly executed certificates representing the Shares and the Warrants being purchased by such Investor, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinapplicable;
5.1.5 (d) the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Closing Date, that is in form and substance reasonably acceptable satisfactory to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents)Investor;
5.1.6 (e) the Company shall have delivered authorized and reserved for issuance the aggregate number of Shares issuable upon exercise of all of the Warrants to such Investor the duly executed Note being purchased by such Investor be issued at the ClosingClosing (such number to be determined without regard to any restriction on such exercise);
5.1.7 (f) other than as disclosed in the SEC Documents, since the date of execution of this Agreement, no event or series of events shall have occurred that, individually or in the aggregate, reasonably could have, or result in, a Material Adverse Effect;
(g) the Company shall have executed and delivered to such Investor all collected more than 65% of the Transaction Documents;
5.1.8 the Company shall have delivered to such Investor a certificateaccounts receivable outstanding as of August 31, signed 2013 and generated by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation, By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the Board of Directors, authorizing the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 there shall have occurred no material adverse change in the Company’s consolidated former Hillside, New Jersey freight forwarding and logistics business or financial condition since which the date Company sold as of the Company’s most recent financial statements contained in the Disclosure DocumentsAugust 31, 2013 to Allports Logistics Anchor Wharehouse, LLC; and
5.1.10 (h) there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Janel World Trade LTD)
CONDITIONS TO INVESTORS’ OBLIGATIONS AT THE CLOSING. Each Investor’s obligations to effect the Closing, including, including without limitation, limitation its obligation to purchase a Note the Purchased Shares at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 (a) the representations and warranties of the Company set forth and the Executive Shareholder shall be true and correct in this Agreement all respects, if qualified by materiality, and in the other Transaction Documents shall be true and correct in all material respects respects, if not qualified by materiality, at and as of the Closing with the same effect as though made at and as of such date as if made on such date time (except that to the extent those representations and warranties that any such representation or warranty relates to are made as of a particular date, such representation or warranty specific date shall be true correct only as of such date);
(b) the Company shall have duly performed and correct complied in all material respects as of that particular date);
5.1.2 the Company shall have with all covenants contained herein required to be performed or complied with or performed by it in all material respects all connection with the consummation of the agreements, obligations transactions contemplated hereby and conditions set forth in this Agreement and in by the other Transaction Documents that are required to be complied with or performed by the Company on at or before the Closing;
5.1.3 (c) the Company shall have obtained all approvals, acknowledgements and consents, as applicable, from the relevant parties, including the Board of Directors, the Consenting Parties and any Governmental Authorities;
(d) the Company shall have obtained a written waiver (the “Waiver”)”) in substantially the form attached hereto as Exhibit E from the Private Placement Investors with respect to the waiver of their right of first refusal under Section 6.14 of the Preferred Stock Purchase Agreement;
(e) the Closing Date shall occur on not be a date that which is not later than December 29March 17, 20052010, or such other date as the parties may agree in writing (the “Latest Closing Date”);
5.1.4 (f) the Company shall have delivered or caused to be delivered to Investor at the Closing:
(i) duly executed certificates evidencing the Purchased Shares in such denominations and registered in the name of Investor as set forth Schedule I hereto as supplemented or amended from time to time prior to the Closing;
(ii) a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyCompany and dated as of the Closing Date, certifying that all the closing conditions specified in subparagraphs 5.1.1, 5.1.2, 5.1.9 and 5.1.10 of this Section 5.1 have been fulfilled are satisfied as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 (iii) the Company shall have delivered to such Investor an opinion a certificate, signed by the Chief Executive Officer or opinions the Secretary of counsel for the Company, Company and dated as of the Closing Date, that is in form and substance reasonably acceptable to such Investor (including perfection opinions with respect to the security interests granted under the Security Documents);
5.1.6 the Company shall have delivered to such Investor the duly executed Note being purchased by such Investor at the Closing;
5.1.7 the Company shall have executed and delivered to such Investor all of the Transaction Documents;
5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate Articles of Incorporation, Incorporation and By-Laws or similar governing documents of the Company, and (ii) resolutions passed by the its Board of Directors, Directors and shareholders of the Company authorizing the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 (iv) the Company shall have delivered to Investor a certificate, signed by the Chief Executive Officer that the Certificate of Designation has been adopted and filed;
(v) legal opinions of New York counsel and Nevada counsel for the Company or a legal opinion covering both New York and Nevada matters from Xxxxx Xxxxxxx LLP, dated as of the Closing Date, in forms reasonably satisfactory to Investor;
(vi) a legal opinion of the PRC counsel for the Company, dated as of the Closing Date, in a form satisfactory to Investor;
(vii) an Escrow Agreement duly executed by the Company and the Escrow Agent; and
(viii) the Share Pledge Agreement executed by the Executive Shareholder;
(g) there shall not exist any condition or have occurred no material adverse any change in the Company’s consolidated business or financial condition since the date of the Company’s most recent financial statements contained in the Disclosure Documents; andSEC Documents that would reasonably likely to result in a Material Adverse Effect;
5.1.10 (h) the Company shall have entered into an employment agreement with each of the Key Employees in substantially the form attached hereto as Exhibit F;
(i) the Certificate of Designation has been adopted by the Company and filed with the Secretary of the State of the State of Nevada;
(j) the Company shall continue to meet its eligibility requirements for the quotation of its Common Shares on the OTCBB;
(k) the Company shall be in compliance, in all material respects, with each of the FINRA, NASD and SEC rules applicable to the OTCBB and the Company shall not have received any notice from OTCBB, FINRA, NASD or SEC that the Company may not be in such compliance, and there shall be no facts or circumstances existing that could be the basis for any non-compliance or notice of any non-compliance;
(l) as of the Closing, the lease agreement between Konzern and No. 76171 Force of People’s Liberation Army in relation to the warehouse located at Xx. 00, Xxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxxxx for the purpose of the storage of medicine and other medical products shall have been renewed and the GSP license granted to Konzern with respect to such warehouse shall not have been affected by the expiry and renewal of the lease;
(m) Konzern shall have obtained the approvals from the Governmental Authorities in the PRC for the increase of registered capital or total investment of Konzern for an amount no less than the Common Shares Purchase Price;
(n) the approval for environmental impact inspection reports, examination report of environmental protection on the completion of the construction project, and waste discharge permit issued by local environmental protection bureau regarding the construction and expansion of all of LifeTech’s plants have been obtained and all of the waste discharge fees have been paid up;
(o) there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or and by the other Transaction Documents;
(p) the waiting period under the HSR Act with respect to the transactions contemplated by this Agreement shall have expired or been terminated;
(q) the terms and conditions of any agreements between Peak Capital and the Company shall have amended to such terms and conditions as have been agreed to by Investor in writing; and
(r) the Company shall have furnished to the Investors a certificate stating that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
Appears in 1 contract
Samples: Stock Subscription Agreement (OEP CHME Holdings, LLC)
